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Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.    The 
special  features  of  these  books  are  as  follows: 

1.  A  succinct  statement  of  leading  principles  in  blacklet- 

ter  type. 

2.  A   more   extended   commentary,   elucidating    the    princi- 

ples. 

3.  Notes  and  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 

$3.75   per  volume,   including   delivery- 

Bound  In  American  Law  Buckram. 


1.  Norton  on  Bills  and  Notes.     (3d  Ed.) 

2.  Clark  on  Criminal  Law.     (2d  Ed.) 

3.  Shiprnan  on  Common-Law  Pleading.     (2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.r 

5.  Black  on  Constitutional  Law.    (3d  Ed.) 

6.  Fetter  on  Equity. 

7.  Clark  on  Criminal  Procedure. 

8.  Tiffany  on  Sales.     (2d  Ed.) 

9.  Glenn  on  International  Law. 

10.  Jaggard  on  Torts.     (2  vols.) 

11.  Black  on  Interpretation  of  Laws.     (2d  Ed.) 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith  on  Elementary  Law. 

14.  Hale  on  Damages.     (2d  Ed.) 

15.  Hopkins  on  Real  Property. 

16.  Hale  on  Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations.    (2d  Ed.) 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on  Corporations.     (2d  Ed.) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence.     (2d  Ed.) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on  Wills. 

28.  Vance  on  Insurance. 

29.  Ingersoll  on  Public  Corporations. 

30.  Hughes  on  Federal  Jurisdiction  and  Procedure. 

31.  Chi  Ids  on  Suretyship  and  Guaranty. 

32.  Costlgan  on  American  Mining  Law. 

33.  AVilson  on  International  Law. 

34.  Gilmore  on  Partnership. 

35.  Black  on  Judicial  Precedents. 

36.  Tiffany  on  Banks  and  Banking. 

In  preparation:     Handbooks  of  the  law  on  other  subjects  to  be  an- 
nounced later. 

Published   and  for   sale  by 
WEST  PUBLISHING  CO.,  ST.  PAUL,  MINN. 

CMMJ 


HANDBOOK 


OF    THE 


LAW  OF  PRINCIPAL  AND  AGENT 


By  FRANCIS  B.  TIFFANY 

J  >U 

AUTHOR  OF  DEATH  BY  WRONGFUL  ACT,  LAW  OF  SALES,  ETC 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 

1903 


44 


T441U 


COPYRIGHT,  1908, 

BT 
WEST  PUBLISHING  CO. 


cut 


PREFACE. 


The  object  of  this  book,  as  has  been  explained  more  fully 
in  the  introductory  chapter,  is  to  present  the  general  rules  and 
principles  of  that  part  of  the  law  of  Agency  which  may  con- 
veniently be  classed  under  the  head  of  Principal  and  Agent. 
Topics  wtyich  are  commonly  classed  under  the  head  of  Master 
and  Servant  have  been  largely  excluded,  or  have  been  dis- 
cussed only  incidentally.  The  scope  of  the  book  has  been 
thus  limited  both  because  it  was  the  desire  of  the  writer  to 
treat  the  matters  considered  with  greater  fullness  of  illustra- 
tion in  text  and  notes  than  would  have  been  possible  had  its 
scope  been  enlarged,  and  because  the  matters  excluded  have 
been  covered  by  other  books  in  the  Hornbook  Series. 

The  subject  presents  many  difficult  points  as  to  which  there 
is  conflict  of  opinion,  sometimes  in  respect  to  the  rules,  some- 
times in  respect  to  the  reasons  for  the  rules.  It  has  been  the 
aim  to  discuss  these  questions  briefly  and,  when  possible 
within  the  limited  compass  of  an  elementary  book,  to  give 
expression  to  the  views  of  the  judges  in  leading  cases ;  and  on 
all  points  treated  to  cite,  in  addition  to  the  leading  cases,  a 
sufficient  number  of  the  later  cases  to  make  the  book  service- 
able to  the  practitioner  as  well  as  to  the  student. 

The  author  desires  to  express  his  obligation  to  the  many 
writers  who  have  contributed  to  formulate  and  classify  this 
branch  of  the  law, — and  particularly  to  Story,  whose  Com- 
mentaries are  still  indispensable  to  the  student;  to  Prof. 
Floyd  R.  Mechem,  whose  great  treatise  deservedly  ranks  as 
a  standard  of  authority;  to  Prof.  Ernest  W.  Huffcut,  whose 

(v) 


VI  PREFACE. 

recent  book  has  done  so  much  to  clarify  and  illuminate  the 
subject;  to  William  Bowstead,  Esquire,  whose  Digest  of  the 
Law  of  Agency  admirably  fulfills  its  object  of  reducing  the 
English  law  to  a  concise  statement  of  definite  rules  and  princi- 
ples; and  to  Prof.  Eugene  Wambaugh,  whose  full  and  dis- 
criminating Selection  of  Cases  forms  a  basis  for  the  study  of 
Agency.  F.  B.  T. 

St  Paul,  June  1,  1908. 


TABLE  OF  CONTENTS. 


PART  L 
IN  GENERAL. 

CHAPTER  I. 

INTRODUCTORY. 

Section  Page 

1.  Agent  Defined  —  Broadest  Sense  ....................  1-4 

2.  Narrower  Sense  ..............................  1-4 

3.  Servant  and  Agent  Distinguished  ...................  5-14 

CHAPTER  n. 

CREATION  OF  RELATION   OF   PRINCIPAL,  AND  AGENT- 
APPOINTMENT. 

4.  Creation  of  Relation  ..............................  15-16 

5.  Estoppel    .....................................  15-16 

6.  Agency  by  Appointment  ...........................  16-19 

7.  Form  of  Appointment  .............................  20-33 

8.  Appointment  to  Execute  Deed  ....................  20-33 

9.  Agency  by  Estoppel  ..............................  34-38 

10.    Agency  from  Necessity  ............................  39-45 


CHAPTER 

CREATION  OF  RELATION  OF  PRINCIPAL  AND  AGENT  (CON- 
TINUED)— RATIFICATION. 

11.  Agency  by  Ratification  ............................     46-47 

12.  What  Acts  may  be  Ratified  .......................    48-54 

TIFF.P.&  A.  (vii) 


Viii  TABLE   OF  CONTENTS. 

Section 

13.  Ratification  of  Forgery   

14.  Conditions  of  Performance  of  Act 54-57 

15.  Who  may  Ratify SS-60 

16.  How  an  Act  may  be  Ratified 60 

17.  Knowledge  of  Facts  61-75 

18.  Effect  of  Ratification 75-89 


CHAPTER  IV. 

WHAT  ACTS  CAN  BE  DONE  BY  AGENT— ILLEGALITY— CA-  ' 
PACITY  OF  PARTIES— JOINT  PRINCIPALS 
AND  AGENTS. 

19.  What  Acts  can  be  Done  by  Agent 90-93 

20.  Dlegality  of  Object 90-93 

21.  Capacity  of  Parties— Principal 94-105 

22.  Capacity  of  Parties — Agent — Capacity  to  Act 105-110 

23.  Capacity  to  Enter  into  Contract  of  Agency 105-110 

24.  Joint  Principals  110-112 

25.  Joint  Agents 112-115 

CHAPTER  V. 

DELEGATION  BY  AGENT— SUBAGENTS. 

26.  Delegation  of  Authority 116-117 

27-28.    When  Authority  to  Delegate  will  be  Implied 117-123 

29.    Responsibility  for  Acts  of  Subagent — Privity  of  Con- 
tract     123-125 

80.  When  Authority  to  Create  Privity  of  Contract  will 

be  Implied 126-132 

CHAPTER  VI. 

TERMINATION  OF  RELATION. 

81.  Modes  of  Termination 133 

32.    Termination  by  Limitation  ..133-135 


TABLE   OP  CONTENTS. 

Section  Page 

33.  Termination  by  Act  of  Party 136-143 

34.  Termination  by  Operation  of  Law 143-151 

35.  Notice  to  Third  Persons— Estoppel 151-152 

86.  Irrevocable  Authority — Authority  Given  as  Security..        152 

37.  Authority  Coupled  with  an  Interest 152 

38.  Authority   to    Discharge   Liability   Incurred   by 

Agent   153-165 

CHAPTER  VH. 

CONSTRUCTION  OF  AUTHORITY. 

89.    Express  Authority — Power  of  Attorney 167 

40.  Informal  Authority  168-173 

41.  Ambiguous  Authority  168-173 

42.  Implied  Authority  174-179 

43.  Express  Authority — Incidental  Powers  Implied 174-179 

44.  Powers  Implied  from  Usage 174-179 


PART    II. 

RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  THIRD  PERSONS. 


CHAPTER  VIH. 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON- 
CONTRACT. 

45.  Liability  on  Contract — Disclosed  Principal 180 

46.  Apparent  Authority 180 

47.  Estoppel    181-202 

48.  Scope  of  Particular  Agencies 203-228 

49.  Contract  Induced  by  Collusion  of  Other  Party  and 

Agent 229-230 


TABLE   OF  CONTENTS. 


CHAPTER  IX. 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON- 
CONTRACT  (CONTINUED). 

flection  Pa*e 

50.    Liability  upon   Contract— Undisclosed  Principal — In 

General    231-235 

61.  Parol  Evidence  231-235 

52.  Liability  of  Undisclosed  Principal 235 

53.  Election  to  Hold  Agent 235 

54.  Settlement  with  Agent  235 

55.  Contract  under  Seal 235 

56.  Negotiable  Instrument  236-246 


CHAPTER  X. 

ADMISSIONS  BY  AGENT— NOTICE  TO  AGENT. 

67.    Admissions  by  Agent— When  Competent 247-257 

58.  Incompetent  to  Prove  Authority 247-257 

59.  Notice  to  Agent — Imputed  Notice — Notice  in  Course 

of  Employment  257 

60.  Knowledge  Acquired  in  Other  Transaction 257-258 

61.  General  Exception — Adverse  Interest  of  Agent.  .258-267 

CHAPTER  XL 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON— TORTS  AND 

CRIMES. 

62.  Liability  for  Torts— Act  Commanded  or  Ratified 268-269 

63.  Liability  of  Master  for  Tort  of  Servant 269-275 

64.  Liability  of  Principal  for  Tort  of  Agent— In  Gen 

eraL , 275 

65  Fraud 275-276 

66.  Fraud  not  for  Principal's  Benefit— Estoppel 276-297 

67.  Liability  for  Crimes ..297-301 


TABLE   OF   CONTENTS. 


CHAPTER 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL, 

Section  Page 

68.  Contract — Contract  In  Name  of  Principal 302-303 

69.  Defenses    302-303 

70.  Contract  on  Behalf  of  Undisclosed  Principal 303 

71.  Defenses  Against  Undisclosed  Principal 304-314 

72.  Quasi  Contract  314-315 

73-76.    Torts — Property  Wrongfully  Disposed  of 315-323 

77.  Following  Trust  Funds 323-326 

78.  Fraud  and  Deceit 326-328 

79.  Collusion  with  Agent 326-328 

80.  Loss  of  Service  Caused  by  Wrongful  Act 328-329 


PART  in. 

RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD  PERSON. 


CHAPTER 

LIABILITY  OF  AGENT  TO  THIRD  PERSON  (INCLUDING  PAR 
TIES  TO  CONTRACTS). 

8L    Liability  on  Authorized  Contract I..        830 

82.  Nature  of  Contract 831-332 

83.  Parties  to  Instrument  under  Seal 332-336 

84.  Parties  to  Negotiable  Instrument 336-337 

85.  Parol  Evidence 337-355 

86.  Parties  to  Contract  not  Sealed  or  Negotiable 355 

87.  Written  Contract  365 

87a.  Parol  Evidence  356-368 

88.  Oral  Contract  .  ..856-368 


Xll  TABLE   OP  CONTENTS. 

Section 

89.  Public  Agent  856-368 

90.  When  Apparent  Agent  Is  Keal  Principal 356-368 

91.  When  Agent  Acts  Without  Authority — Implied 

Warranty  of  Authority .368-376 

92.  Measure  of  Damages   for   Breach  of  War- 

ranty     368-376 

93.  Liability    on    Quasi    Contract— Money    Received    in 

Good  Faith   376-378 

94.  Money  Obtained  Wrongfully  376-378 

95.  Money  Received  from  Principal  for  Third  Per- 

son     378-379 

96.  Liability  for  Torts  379-385 

97.  Nonfeasance    .' 379-385 

CHAPTER  XIV. 

LIABILITY  OP  THIRD  PERSON  TO  AGENT. 

98.  Liability  on  Contract— Right  of  Agent  to  Sue ..386-391 

99.  Intervention  by  Principal 386-391 

100.  Defenses    386-391 

101.  When  Professed  Agent  is  Real  Principal 391-393 

102.  Liability  for  Money  Had  and  Received 393-394 

103.  Liability  for  Torts 894 


PART  IV. 

RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 


CHAPTER  XV. 

DUTIES  OF  AGENT  TO  PRINCIPAL, 

104.  Duties  of  Agent  to  Principal— In  General 895-396 

105.  Duty  to  Obey  Instructions .  .396-404 


TABLE   OP  CONTENTS.  Xlll 


Section 

106.  Duty  to  Exercise  Skill,  Care,  and  Diligence 405-415 

107.  Duty  to  Exercise  Good  Faith 415-426 

108.  Duty  to  Account 426-438 

CHAPTER  XVI. 

DUTIES  OF  PRINCIPAL  TO  AGENT. 

109.  Duties  of  Principal  to  Agent — In  General 439-440 

110.  Duty  to  Remunerate 440-444 

111.  Implied  Contract  »... 440-444 

112.  Right  to  Remuneration — Performance  by  Agent 445—446 

113.  Same — Performance  Prevented — Employment  at 

will  of  Principal 447-453 

114.  Revocation  in  Breach  of  Contract 447-453 

115.  Revocation  by  Operation  of  Law 447-453 

116.  Renunciation  by  Agent 453-454 

117.  Agent's  Misconduct  or  Breach  of  Duty 454—456 

118.  Duty  to  Reimburse  and  Indemnify 456-458 

119.  Illegal  Transactions  459-462 

120.  Rights  of  Subagent  . . .". 462-463 

121.  Personal  Remedies  of  Agent 463 

122.  Lien  of  Agent— Particular  Lien 464-473 

123.  General  Lien  464-473 

124.  Lien  Possessory 464-473 

125.  Lien  of  Subagent 474-475 

126.  Right  of  Stoppage  in  Transitu 475-476 

APPENDIX. 
(Page  477.) 

t 


..      HAND-BOOK 

OP  THE 

LAW  OF  PRINCIPAL  AND  AGENT, 


PART  I. 
IN  GENERAL. 


CHAPTER  I. 

INTRODUCTORY. 

1.  Agent  Defined— Broadest  Sense. 

2.  Narrower  Sense. 

8.    Servant  and  Agent  Distinguished. 

AGENT  DEFINED— BROADEST   SENSE. 

1.  An  agent,  in  the  broadest  sense,  is  a  person  authorized  by 

another,  called  the  principal,  to  act  on  his  behalf. 

SAME— NARROWER   SENSE. 

2.  An    agent,    in    the    narrower    sense    in    which    the    term    is 

used  to  distinguish  the  person  to  whom  it  is  so  ap- 
plied from  other  so-called  agents,  is  a  person  author- 
ized by  another,  called  the  principal,  to  act  on  his 
behalf,  and  represent  hint,  in  bringing  him  into  legal 
relation  with  a  third  person. 

The  foregoing  definitions  by  implication  embrace  a  defini- 
tion of  principal,  whether  in  the  broader  or  narrower  sense. 

The  terms  "principal"  and  "agent"  *  are  difficult  to  define, 
because  they  are  used  in  different  senses.  In  the  broader 

§§  1-2.    i  The  following  are  some  of  the  definitions  of  "agent": 
"An  agent  is  a  person  duly  authorized  to  act  on  behalf  of  an- 
TIFF.P.&  A.— 1 


2  INTRODUCTORY.  (Ch.  1 

sense  in  which  the  terms  are  frequently  used,  the  relation  of 
principal  and  agent  exists  whenever,  by  reason  of  authority 
conferred  by  one  person  upon  another  to  act  on  his  behalf, 
the  act  of  the  latter — not  necessarily  an  act  authorized — is  by 
law  imputed  to  the  former.  Using  the  terms  in  this  broad 
sense,  if  one  person,  pursuant  to  the  command  of  another, 
does  an  act  which  is  a  trespass,  thereby  subjecting  the  latter 
to  liability  for  the  tort,  the  former  is  the  latter's  agent.  And 
if  a  person  who  is  employed  by  another  to  do  work  under  his 
direction  and  control,  and  therefore  technically  termed  a 
servant,  in  the  course  of  the  employment  does  an  act  which 
injures  a  stranger,  and  for  which,  although  it  was  in  fact  un- 
authorized or  even  forbidden,  the  law  declares  that  the  em- 
ployer must  answer,  the  actual  tort  feasor  is  in  the  commis- 
sion of  the  act  the  agent  of  the  person  who  employed  him  to 
work,  and  the  latter  is  a  principal.  The  actual  doer  of  the  act 
is  said  to  be  the  agent  of  the  other,  because  in  the  commis- 
sion of  the  act  he  represents  him ;  that  is,  because  the  act,  in 
respect  to  the  obligations  and  rights  to  which  as  between  the 
other  and  third  persons  it  gives  rise,  is  in  legal  effect  the 

other,  or  one  whose  unauthorized  act  has  been  duly  ratified."  Evans, 
Agency,  1. 

"An  agent  is  one  who  acts  for  and  in  the  stead  of  another,  termed 
the  principal,  either  generally  or  in  some  particular  business  or 
thing,  and  either  after  his  own  discretion  in  full  or  in  part,  or  under 
a  specific  command."  Bishop,  Contracts,  §  1027. 

"An  agent  is  a  person  having  express  or  implied  authority  to 
represent  or  act  on  behalf  of  another  person,  who  is  called  his 
principal."  Bowstead,  Dig.  Ag.  art.  1. 

"When  a  person  is  employed  to  bring  his  employer  in  legal  rela- 
tions with  a  third  person,  he  is  an  agent."  Wright,  Prin.  &  Ag.  2. 

"An  agent  is  n  representative  vested  with  authority,  real  or  os- 
tensible, to  create  voluntary  primary  obligations  for  his  principal, 
by  making  contracts  with  third  persons,  or  by  making  promises 
or  representations  to  third  persons  calculated  to  induce  them  to 
change  their  legal  relations."  Huffcut,  Ag.  (2d  Ed.)  17. 

"One  who  represents  another,  called  the  principal,  in  dealing 
with  third  persons."  Oal.  Civ.  Code,  §  2295;  Mont.  Code,  §  3070; 
N.  D.  Rev.  Code,  §  4303. 


§§  1-2)  AGENT  DEFINED.  8 

other's  act.  The  person  who  does  a  representative  act  may 
conveniently  be  designated  as  the  representative,  and  the  per- 
son represented  as  the  constituent.  In  its  br6ad  sense, 
agency  is  the  relation  between  constituent  and  representa- 
tive.8 
The  terms  "principal"  and  "agent,"  and  even  "agency,"  are, 

*  The  following  are  some  of  the  definitions  of  "agency": 

"The  relation  of  principal  and  agent  takes  place  wherever  one 
person  authorizes  another  to  do  acts  or  make  engagements  in  his 
name."  Dunlap's  Paley  on  Agency,  1. 

"In  the  common  language  of  life,  he,  who,  being  competent,  and 
Bui  juris,  to  do  any  act  for  his  own  benefit,  or  on  his  own  account, 
employs  another  person  to  do  it,  is  called  the  principal,  constituent, 
or  employer;  and  he,  who  is  then  employed,  is  called  the  agent, 
attorney,  proxy,  or  delegate  of  the  principal,  constituent,  or  em- 
ployer. The  relation,  thus  created,  between  the  parties,  is  termed 
an  agency."  Story,  Agency,  §  3. 

"Agency  is  founded  upon  a  contract,  either  express  or  implied, 
by  which  one  of  the  parties  confides  to  the  other  the  management 
of  some  business,  to  be  transacted  in  his  name  or  on  his  account, 
and  by  which  the  other  assumes  to  do  the  business  and  to  render 
an  account  of  it"  2  Kent,  Com.  612. 

"Agency  is  a  contract  by  which  one  person,  with  greater  or  less 
discretionary  powers,  undertakes  to  represent  another  in  certain 
business  relations."  Wharton,  Agency,  1. 

"Agency  Is  a  legal  relation,  founded  upon  the  express  or  implied 
contract  of  the  parties,  or  created  by  law,  by  virtue  of  which  one 
party— the  agent— is  employed  and  authorized  to  represent  and  act 
for  the  other— the  principal— in  business  dealings  with  third  per- 
sons." Mechem,  Agency,  §  1. 

"Agency  is  a  relation  between  two  persons  such  that  the  act 
of  the  former,  called  the  agent,  is  by  law  imputed  as  the  act  of 
the  latter,  who  Is  called  the  principal."  Campbell,  Sale  of  Goods 
&  Commercial  Agency,  519. 

"Agency  is  a  term  signifying  the  legal  relations  established  when 
one  man  is  authorized  to  represent  and  act  for  another  and  does 
so  represent  and  act  for  another."  Huffcut,  Ag.  (2d  Ed.)  5. 

"The  relation  of  principal  and  agent  arises  whenever  one  person, 
expressly  or  by  implication,  authorizes  another  to  act  for  him,  or 
subsequently  ratifies  the  acts  of  another  in  his  behalf."  Ga.  Code 
1882,  §  2178. 


4  INTRODUCTORY.  (Ch.  1 

however,  also  used  in  a  narrower  sense."  In  this  sense,  they 
are  confined  to  the  relation  between  constituent  and  repre- 
sentative when  the  authority  is  conferred  for  the  purpose  of 
creating  a  new  legal  relation  between  the  constituent  and 
a  third  person  and  the  act  authorized  is  of  a  nature  to  create 
such  new  relation — in  common  language,  when  the  repre- 
sentative, or  agent,  is  authorized  to  represent  the  constituent, 
or  principal,  in  business  dealings  with  third  persons.  It  is 
with  agency  in  this  narrower  sense  that  this  book  is  mainly 
concerned. 

Authority — How  Derived. 

Strictly  speaking,  a  person  cannot  be  an  agent  except  by 
virtue  of  authority  derived  from,  or  conferred  upon  him  by, 
another  to  act  on  his  behalf.4  It  is  enough  to  say  here  that 
the  authority  need  not  exist  at  the  time  of  the  performance 
of  the  act,  for  under  certain  conditions  the  authority  may 
be  conferred  subsequently,  by  ratification.5  Again,  although 
no  authority  has  been  conferred,  a  person  may  be  estopped 
to  deny  that  another  is  his  agent.*  The  manner  in  which  the 
authority  may  be  derived  will  be  discussed  in  detail  in  treat- 
ing of  the  mode  in  which  the  relation  of  principal  and  agent 
may  be  created. 

»  "It  is  to  be  regretted  that  the  word  'agency'  should  be  used 
to  cover  the  whole  field  of  representation,  and  that  the  word 
'agent'  should  at  the  same  time  be  used  as  the  name  of  the  rep- 
resentative in  one  branch  of  it.  If  there  were  another  word  for 
agency  (e.  g.,  *representation'),  or  another  word  for  agent  (e.  g., 
•deputy'),  many  tedious  circumlocutions  might  be  avoided.  It  might 
be  better  still  if  the  whole  field  were  called  the  'Law  of  Repre- 
sentation,' while  the  branch  known  as  the  'Law  of  Principal  and 
Agent'  were  called  the  'Law  of  Agency,'  and  that  known  as  the 
•Law  of  Master  and  Servant,'  were  called  the  'Law  of  Service.' " 
Buffcut,  Ag.  (2d  Ed.)  10,  note  5. 

«  As  to  so-called  agency  by  necessity,  post,  p.  39. 

•  Post,  p.  48.  «  Post,  p.  34. 


§  3)  SERVANT  AND  AGENT   DISTINGUISHED. 


SERVANT  AND  AGENT  DISTINGUISHED. 

3.  A  servant,  as  distinguished  from  an  agent  in  the  nar- 
rower sense,  is  a  person  employed  by  another,  called 
the  master,  to  render  to  him,  subject  to  his  direction 
and  control,  personal  service  in  the  performance  of 
acts  which  are  not  of  a  nature  to  create  new  legal 
relations  between  the  employer  and  third  persons. 

It  is  plain  good  sense  to  hold  a  man  responsible  for  the 
acts  which  he  has  caused  to  be  done  and  for  their  probable 
consequences,  whether  through  natural  forces  or  human 
agencies.1  If  the  law  went  no  further  than  to  hold  the  em- 
ployer answerable  for  acts  which  he  had  actually  authorized, 
the  problems  presented  would  be  comparatively  simple.  In 
many  cases,  however,  he  is  held  responsible  in  tort  for  the 
wrongful  act  of  a  person  employed  by  him,  although  he  did 
not  authorize  it  and  even  forbade  it,  and  is  held  answerable 
for  a  contract,  although  in  making  it  his  agent  exceeded  or 
violated  his  instructions.  Two  principal  questions  in  the  law 
of  representation  are  concerned  with  the  liability  of  the  em- 
ployer in  tort  and  in  contract  for  the  acts  of  his  representa- 
tive in  excess  or  in  violation  of  the  authority  actually  confer- 
red. 

Where  one  person  is  employed  by  another  to  perform  acts 
which  have  not  for  their  object  the  creation  of  new  legal  re- 
lations with  third  persons,  but  which  in  distinction  to  such 
acts  may  be  called,  very  roughly,  manual  and  mechanical, 
unless  the  acts  authorized  are  essentially  of  a  character  to  in- 
fringe the  rights  of  others,  the  employer  cannot  properly  be 
said  to  authorize  the  person  whom  he  employs  to  subject  him 
to  liabilities.  Nevertheless,  if  the  latter,  in  the  course  of  his 
employment  and  in  furtherance  of  it,  commits  a  tort,  the  em- 
ployer may  be  answerable  for  it.  Whether  he  is  so  answer- 
able depends  upon  whether  the  person  committing  the  tort 
was  employed  in  a  character  which  the  law  has  seen  fit  to 

§  3.     *  O.  W.  Holmes,  Jr.,  4  Harv.  L.  Rev.  347. 


6  INTKODUCTOBT.  . 

regard  as  representative,  and  depends  in  most  cases  upon 
whether  the  relation  of  master  and  servant  exists  between 
the  employer  and  the  employed.  The  master  is  liable  for  the 
torts  of  his  servant,  committed  in  the  course  of  and  in  fur- 
therance of  the  employment,  notwithstanding  that  the  wrong- 
ful act  was  not  authorized  or  was  forbidden. 
Same — Servant,  Agent,  and  Independent  Contractor. 

The  relation  of  master  and  servant  exists  only  between 
persons,  one  of  whom,  the  servant,  is  employed  by  the  other, 
the  master,  to  perform  services  subject  to  the  employer's 
order  and  control.  "A  master  is  one  who  not  only  prescribes 
to  the  workman  the  end  of  his  work,  but  directs ,  or  at  any 
moment  may  direct,  the  means  also,  or,  as  it  has  been  put, 
retains  the  power  of  controlling  the  work ;  and  he  who  does 
work  on  those  terms  is  in  law  a  servant,  for  whose  acts, 
neglects,  and  defaults  *  *  *  the  master  is  liable." 2  On 
the  other  hand,  if  the  person  employed  is  one  who  under- 
takes to  produce  a  given  result,  but  is  free  to  select  the 
means  and  methods  of  accomplishment,  in  things  not  speci- 
fied beforehand,  and  the  employer  does  not  retain  the  right 
to  order  and  control  the  manner  in  which  the  work  shall 
be  done,  the  person  employed  is  an  "independent  contract- 
or," for  whose  wrongful  acts,  neglects,  and  defaults  the  em- 
ployer is  not  liable.8  Yet  even  where  the  relation  is  that  of 
employer  and  independent  contractor,  if  that  which  the  con- 
tractor is  employed  to  do  is  in  itself  wrongful,  as  a  trespass 
or  a  nuisance,  the  employer  is  answerable  for  the  injury,  be- 
cause he  has  in  effect  commanded  or  authorized  the  wrong- 
ful act.4 

When,  on  the  other  hand,  one  person  employs  another  to 
perform  on  his  behalf  acts  which  have  for  their  object  the 
creation  of  new  legal  relations  with  third  persons,  the  lia- 
bility of  the  employer  for  the  acts  of  the  person  whom  he 
employs  depends  in  the  main  upon  different  considerations. 

«  Pollock  (Webb's)  Torts,  92.  *  Post,  p.    270. 

•  Pollock  (Webb's)  Torts,  93. 


§  3)  SERVANT  AND   AGENT   DISTINGUISHED.  7 

In  this  case  the  employer  does,  or  may,  authorize  the  agent 
to  subject  him  to  liabilities,  as  well  as  to  acquire  rights  on 
his  behalf,  in  other  words  to  represent  him,  for  such  is  the 
very  purpose  of  the  authority.  The  agent  is  authorized  to 
do  for  his  employer  acts  which  are  of  a  nature  to  bring  him 
into  contractual  relations,  as  by  making  offers,  representa- 
tions, and  promises,  or  which  are  of  a  nature  to  affect  his  ex- 
isting contractual  or  other  legal  relations  by  way  of  perform- 
ance, discharge,  and  enforcement.  It  is  his  function  to  cre- 
ate new  relations,  usually,  if  not  always,  by  inducing  third 
persons  to  act.  The  third  person  is,  as  a  rule,  dealing  with 
the  agent,  and  bound  at  his  peril,  if  he  would  hold  the  prin- 
cipal responsible,  to  ascertain  the  extent  of  the  agent's  au- 
thority. It  is  true  that  the  principal  may  be  liable  for  the 
contract  of  his  agent  made  in  excess  of  the  authority  actually 
conferred,  but  this  can  never  be  if  the  third  person  has  no- 
tice of  the  limits  of  the  authority.  As  against  third  persons 
who  deal  with  the  agent  without  notice  of  limitations  upon 
his  authority,  he  has  the  powers  usually  confided  to  an  agent 
of  the  character  in  which  the  agent  is  employed,  which  may 
exceed  the  authority  actually  conferred,  and  within  the  lim- 
its of  those  powers  he  can  bind  his  principal  by  contract; 
but,  as  against  persons  with  such  notice,  he  cannot  bind 
the  principal  unless  the  contract  was  actually  authorized.6 
Whether  the  agent  is  subject  to  the  direction  and  control  of 
the  principal,  as  a  servant  is  subject  to  the  direction  and 
control  of  his  master,  is  immaterial.  It  is,  indeed,  the  duty 
of  an  agent  to  obey  the  instructions  of  his  principal,8  and 
hence  to  a  greater  or  less  extent  an  agent,  as  such,  is,  with- 
in the  scope  of  his  agency,  subject  to  the  principal's  direction 
and  control.  But  where  the  employer,  by  the  very  nature  of 
the  authority,  gives  to  the  person  whom  he  employs  the  right 
to  represent  him,  to  create  new  legal  relations  between  him- 
self and  third  persons,  the  question  of  how  far  the  employer 
retains  the  power  of  control  has  no  bearing  upon  the  em- 

•  Post,  p.  180  et  seq.  •  Post,  p.  396. 


8  INTRODUCTORY.  (Ch.  1 

plover's  liability.  That  consideration  is  material  only  when 
the.  employment  is  for  the  performance  of  what  have  been 
termed  manual  and  mechanical  acts,  in  determining  whether 
the  person  employed  is  a  servant  or  an  independent  con- 
tractor. An  independent  contractor  is  neither  a  servant  nor 
an  agent ; 7  in  the  performance  of  his  undertaking  he  acts  on 
his  own  behalf. 

•The  same  considerations  which  determine  the  liability  of 
the  principal  for  the  contracts  of  his  agent  have  an  important 
bearing  upon  his  liability  for  his  agent's  torts.  When  the 
employment  is  solely  for  the  purpose  of  creating  new  legal 
relations  with  third  persons,  the  power  of  the  person  em- 
ployed to  subject  his  employer  to  liability  for  torts  is  neces- 
sarily narrow.  A  tort  arises  upon  the  breach  of  an  existing 
legal  duty,  as  upon  an  invasion  of  the  right  of  another  to  his 
property,  his  personal  liberty  and  security,  and  his  reputa- 
tion. Except  in  the  ca'se  of  deceit  and  other  wrongs  involv- 
ing fraud,  and  originating  in  a  false  representation,  the 
wrong  consists,  not  in  inducing  another  to  act  to  his  injury, 
but  in  acting  to  his  injury  upon  him,  and  arises  only  in  the 
performance  of  what  has  been  described  roughly  as  manual 
or  mechanical  acts.  It  follows  that,  when  the  employment  is 
merely  for  the  creation  of  new  legal  relations,  a  tort  for 
which  the  employer  can  be  held  liable  must,  in  nearly  every 
case,  be  one  which  arises  in  a  false  representation.  The  prin- 
cipal is  liable  for  the  agent's  fraud,  because  he  has  employed 
the  agent  to  represent  him  in  dealing  with  third  persons,  and 
must  be  held  to  answer  for  the  manner  in  which  the  agent 
conducts  himself  toward  third  persons  with  whom  he  deals. 
But  he  is  answerable  only  provided  the  false  representation 
by  means  of  which  the  fraud  is  committed  is  one  which,  as 
against  the  person  dealing  with  the  agent  and  induced  there- 
by to  act  to  his  injury,  must  be  deemed  to  have  been  author- 
ized. He  is  liable  only  when  the  representation  is  made  in  an 
authorized  transaction,  or  in  a  transaction  in  which  the  agent 

.   »2  Kent,  Com.   (12th  Ed.)  260,  note  1. 


§  3)  SERVANT  AND   AGENT   DISTINGUISHED.  9 

had  apparent  authority  to  engage,  and  the  third  person  had 
not  notice  that  either  transaction  or  representation  was  un- 
authorized.8 In  the  rare  cases  in  which  the  principal  may  be 
liable  for  a  tort  not  arising  in  a  false  representation,  as  where 
an  attorney  having  authority,  as  an  incident  to  the  conduct 
of  his  client's  suit,  to  cause  an  arrest  or  a  levy  to  be  made, 
does  so  when  the  circumstances  do  not  justify  him,  the  rule 
governing  the  liability  of  the  principal  does  not  differ  in  effect 
from  that  governing  the  liability  of  the  master,  although  it 
rests,  it  seems,  rather  upon  the  fact  that  the  principal  has 
given  the  agent  the  right  to  represent  him  in  doing  the  act 
than  upon  any  consideration  of  the  retention  of  direction  and 
control.' 

Same — Servant  and  Agent  Defined. 

The  terms  "servant"  and  "agent"  are  frequently  used  in- 
terchangeably,10 but  a  distinction  may  conveniently,  and  it 
is  believed  properly,  be  drawn  between  them,  based  upon  the 
consideration's  which  have  been  set  forth.11  A  servant  is  a 

B  Post,  p.  275. 

»  Collett  v.  Foster,  2  H.  &  Is7.  356;  post,  p.  281. 

10  "There  is  yet  a  fourth  species  of  servants,  if  they  may  be  so 
called,    being   rather   in    a   superior,    a    ministerial   capacity,    such 
as  stewards,   factors,   and   bailiffs,   whom,   however,   the  law   con- 
siders as  servants  pro  tempore  with  regard  to  such  of  their  acts 
as  affect  their  master's  or  employer's  property."    1  Blackst.  Com. 
427.     Cf.  Perkins,  Prof.  Book,  §§  184,  185. 

11  "The   great   and    fundamental   distinction   between   a   servant 
and  an  agent  is  that  the  former  is  principally  employed  to  do  an 
act  for  the  employer,  not  resulting  in  a  contract  between  the  mas- 
ter and  a  third  person,  while  the  main  office  of  an  agent  is  to  make 
such  a  contract."    Dwight,  Pers.  &  P.  P.  323. 

"When  dealing  with  the  operation  of  contract  we  had  to  note 
that  although  one  man  cannot  by  contract  with  another  confer 
rights  or  impose  liabilities  upon  a  third,  yet  that  one  man  might 
represent  another,  as  being  employed  by  him,  for  the  purpose  of 
bringing  him  into  legal  relations  with  a  third.  Employment  for 
this  purpose  is  called  'agency.'  "  Anson,  Contracts,  329.  See,  also, 
Id.  332;  Wright,  Prin.  &  Ag.  2. 

"As  between  the  principal  and  his  agent,  agency  is  a  special  kind 


10  INTRODUCTORY.  (Ch.  1 

person  employed  by  another,  called  the  master,  to  render  to 
him,  subject  to  his  direction  and  control,  personal  service  in 
the  performance  of  acts  which  are  not  of  a  nature  to  create 
new  legal  relations  between  the  employer  and  third  persons. 
An  agent  is  a  person  authorized  by  another,  called  the  prin- 
cipal, to  act  on  his  behalf  and  represent  him  in  bringing  him 
into  legal  relations  with  third  persons. 

Of  course,  one  and  the  same  person  may  be  employed  in 
both  capacities.  For  example,  a  servant  may  be  directed  by 
his  master  to  make  a  sale,  and  to  use  the  master's  wagon  in 
going  to  the  place  of  sale ;  and  on  the  way  he  may,  by  care- 
less driving,  injure  a  third  person ;  and  in  making  the  sale  he 
may  give  a  warranty  which  he  was  not  authorized  to  give. 
Here  the  liability  of  the  employer  for  the  injury  results  from 
the  relationtof  master  and  servant;12  while  his  liability  for 
the  warranty,  if  he  is  liable,  results  from  the  relation  of  prin- 
cipal and  agent.1* 

JBasis  of  Law  of  Agency. 

It  is  often  said  that  the  law  of  agency  is  founded  on  the 
maxim,  "qui  facit  per  alium  facit  per  se" — he  who  acts  through 
another  acts  in  person.  But  the  principle  which  the  maxim 
expresses  is  hardly  sufficient  to  explain  the  identification  of 
constituent  and  representative,  by  no  means  complete,  but 
often  apparently  resting  upon  no  logical  ground,  which  per- 
vades the  law  of  principal  and  agent  and  of  master  and  serv- 
ant. The  maxim  has  been  recognized  in  English  law  from 

of  contract.  But  It  differs  from  other  kinds  of  contract  In  that  its 
legal  consequences  are  not  exhausted  by  performance.  Its  object 
Is  not  merely  the  doing  of  specified  things,  but  the  creation  of  new 
and  active  legal  relations  between  the  principal  and  third  persons." 
Pollock,  Contr.  (3d  Ed.)  49. 

See,  also,  Klngan  &  Co.  v.  Silvers,  13  Ind.  App.  80,  37  N.  B.  413. 

12  Singer  Mfg.  Co.  v.  Rahn,  132  IT.  S.  518,  10  Sup.  Ct.  175,  33  L. 
Ed.  440;  Wright,  Prin.  &  Ag.  2;  Dwight,  Pers.  &  P.  P.  323;  post, 
p.  269  et  seq. 

n  Post,  p.  207. 


§  3)  SERVANT  AND   AGENT  DISTINGUISHED.  11 

the  earliest  times.14  It  is,  indeed,  as  has  already  been  said, 
good  sense  to  hold  a  man  responsible  for  acts  which  he  has 
caused  to  be  done  and  for  their  natural  consequences.  This, 
however,  falls  short  of  the  identification  of  constituent  and 
representative,  which  holds  the  master  responsible  for  con- 
sequences which  are  not  the  natural  results  of  acts  command- 
ed, and  which  may  even  have  been  done  in  violation  of  ex- 
press command;  which  treats  an  undisclosed  principal  as  a 
party  to  a  contract  although  the  other  party  believed  that  he 
was  contracting  with  the  agent  personally;  and  which  en- 
ables a  person  by  ratification  to  make  his  own  a  trespass  or 
a  contract  in  which  he  had  no  part.18  In  short,  throughout 
the  law  of  agency  we  are  continually  met  with  the  notion  that 
the  constituent  and  representative  are  one  and  the  same 
person,  and  that  the  rights  and  liabilities  of  the  constituent 
are  not  other  than  they  would  be  were  he  actually  present 
and  acting  in  person.  In  other  words,  we  are  met  by  the 
legal  fiction  of  identity  of  principal  and  agent.  "Such  a 
formula,  of  course,  is  only  derivative.  The  fiction  is  merely 
a  convenient  way  of  expressing  rules  which  were  arrived  at 
on  other  grounds.  *  *  *  But  when  such  a  formula  is 
adopted  it  soon  acquires  an  independent  standing  of  its 
own,"  19  and  tends  to  give  rise  to  new  applications  beyond  the 
rules  which.it  sought  to  formulate. 

The  view  has  been  advanced  that  the  basis  of  this  fiction, 
so  far  as  it  is  not  to  be  explained  by  the  logical  principle, 
"qui  facit  per  alium  facit  per  se,"  is  a  survival  or  outgrowth 
of  the  early  law  of  master  and  servant,  which  in  turn  was 
based  upon  the  primitive  conception  of  the  family,  whereby 
the  head  of  the  family  was  held  responsible  for  the  acts  of 
its  members,  which  included  slaves,  and  at  a  later  day  serv- 
ants ; 1T  and  that  the  law  of  agency  "is  the  resultant  of  a 

i*O.  W.  Holmes,  Jr.,  4  Harv.  L.  Rev.  347,  citing  Fitzherbert'a 
Abridgment,  Annuitie,  pi.  51  (H.  33  Ed.  1),  and  other  authorities. 

104  Harv.  L.  Rev.  348.  "4  Harv.  L.  Rev.  351. 

"  O.  W.  Holmes,  Jr.,  Agency,  4  Harv.  L.  Rev.  345;  5  Harv.  I* 
Rev.  1. 


12  INTRODUCTORY.  (Ch.  1 

conflict  at  every  point  between  logic  and  good  sense — the  one 
striving  to  work  fiction  out  to  consistent  results,  the  other 
restraining  and  at  last  overcoming  that  effort  when  the  re- 
sults became  too  manifestly  unjust."  18 

Others  deny  to  this  fiction  so  great  an  efficacy,  at  all 
events  within  the  sphere  of  torts,  and  find  the  explanation 
of  the  master's  liability  for  the  uncommanded  torts  of  his 
servant  in  the  greater  ability  of  the  master  to  pay  damages ; 19 
or  his  employment  of  an  instrumentality  which  in  the  nature 
of  things  may  result  in  violation  of  another's  rights  and 
responsibility  within  reasonable  limits  for  the  instrumentality 
employed ; 20  or,  again,  in  the  principle  of  social  duty,  that 
every  man  in  the  management  of  his  own  affairs  shall  so  con- 
duct himself  as  not  to  injure  another.81 

Classes  of  Agents. 

Agents  are  sometimes  divided  into  classes  based  upon  the 
different  nature  and  extent  of  their  authority  or  upon  other 
points  which  make  the  particular  classification  convenient.22 
Thus  agents  are  classed  as  universal,  general,  and  special ; 23 
mercantile  and  nonmercantile ; 24  del  credere  and  not  del 
credere;20  professional  and  nonprofessional; 26  gratuitous 
and  paid.27  The  distinctions  founded  upon  these  differences, 
so  far  as  they  are  material,  will  be  discussed  hereafter. 

Certain  classes  of  agents  have  acquired  specific  names 
based  upon  the  nature  of  their  duties.  Among  these  may  be 
mentioned  factors  or  commission  merchants,28  whose  busi- 
ness it  is  to  receive  and  sell  goods  upon  commission;  bro- 

i«4  Harv.  L.  Rev.  346. 

i»  2  Pollock  &  M.  Hist.  Eng.  Law,  530. 

20  7  Harv.  L.  Rev.  383.  22  Evans,  Prin.  &  Ag.  2. 

21  Post,  p.    274.  23  Post,  p.  190. 

**  Under  the  English  Factors'  Act  (52  &  53  Viet.  c.  45),  "mercan- 
tile agents,"  as  therein  defined,  have  peculiar  powers  with  respect 
to  the  disposition  of  goods.  Post,  p.  322,  note  33. 

25  Post,  p.  437.  27  Post,  p.  410. 

20  Post,  p.  179.  28  Post,  p.  222. 


SERVANT  AND  AGENT  DISTINGUISHED.  13 

kers,"  whose  business  it  is  to  make  bargains  for  others  or  to 
bring  persons  together  to  bargain;  auctioneers,30  whose 
business  it  is  to  sell  property  at  public  sale;  attorneys  at 
law,31  whose  business  it  is  to  act  for  others  in  litigation  or 
other  legal  proceedings;  bank  cashiers,32  who  are  the  chief 
executive  officers  of  banks,  and  through  whom  the  financial 
operations  of  banks  are  transacted ;  and  shipmasters,"  who 
are  agents  for  many  purposes  during  the  voyage. 

Partners. 

The  law  of  partnership  is  closely  connected  with  the  law 
of  agency,  for  a  partner  virtually  embraces  the  character  of 
a  principal  and  of  an  agent.  Indeed,  it  is  often  difficult,  upon 
particular  facts,  to  determine  whether  the  resulting  relation  is 
one  of  partnership  or  of  mere  agency.84  It  is  impossible, 
however,  to  lay  down  rules  of  practical  value  for  the  deter- 
mination of  these  questions  without  entering  far  into  the 
field  of  partnership,  and  for  their  determination  the  reader  is 
referred  to  the  books  which  treat  of  that  branch  of  the  law. 

Scope  of  Book. 

The  principal  questions  in  the  law  of  master  and  servant, 
as  distinguished  from  the  law  of  principal  and  agent,  relate  to 
the  liability  of  the  master  for  the  torts  of  his  servant  to  stran- 
gers and  to  fellow  servants,  and  his  liability  to  his  serv- 
ants for  his  own  torts,  and  involve  such  matters  as  the  dis- 
tinction between  a  servant  and  an  independent  contractor, 
the  temporary  transfer  of  service,  compulsory  employment, 
the  fellow  servant  rule  and  vice  principal  doctrine,  and  the 
servant's  assumption  of  risks.  Many  of  the  rules  here  appli- 
cable have,  little  or  no  application  to  questions  of  agency  in 
which  the  relation  of  master  and  servant  is  not  involved.  It 
is  therefore  possible  to  a  great  extent  to  treat  of  the  law 
of  princioal  and  agent  without  entering  upon  these  ques- 

««•  Fost,  p.  224.  ti  Post,  p.  227.  •»  Post,  p.  221. 

«•  Post,  p.  225.  «»  Post,  p.  220.  •«  George,  Partn.  8. 


14  INTRODUCTORY.  (Ch.  1 

tions,  and  it  is  convenient  to  do  so  here,  because  the  body 
of  the  law  relating  to  master  and  servant,  both  in  relation  to 
agency  and  other  matters,  is  so  large  as  to  demand  a  fuller 
treatment  than  it  would  be  possible  to  give  to  it  if  included  in 
the  present  volume.  The  reader  is  referred  to  treatises  upon 
master  and  servant,  torts,  and  negligence  "  for  a  considera- 
tion of  the  topics  excluded  from  the  present  treatment. 

Outline  of  Treatment. 

Growing  out  of  the  formation  of  the  relation  of  principal 
and  agent,  and  out  of  the  execution  or  attempted  execution 
of  the  authority  conferred,  mutual  rights  and  obligations 
arise,  or  may  arise,  between  three  sets  of  persons :  (i)  Be- 
tween the  principal  and  the  agent ;  (2)  between  the  principal 
and  third  persons  with  whom  the  agent  deals;  and  (3)  be- 
tween the  agent  and  such  third  persons. 

In  the  order  of  treatment  adopted,  however,  the  discussion 
of  the  rights  and  obligations  between  the  principal  and  the 
agent  will  follow  that  of  the  rights  and  obligations  of  the  sec- 
ond and  third  sets  of  persons.  But  before  proceeding  to  a 
consideration  of  the  results  of  the  relation  it  will  be  necessary 
to  consider  the  manner  in  which  it  may  be  formed  and  ter- 
minated, and  some  other  matters,  which  can  more  conven- 
iently be  dealt  with  in  that  connection. 

••In  the  Hornbook  Series:  Jaggard,  Torts;  Hale,  Torts;  Bar- 
rows, Negligence. 


§§  4-6)      CREATION  OF  RELATION — APPOINTMENT.          16 


CHAPTER  H. 

CREATION  OF  RELATION   OF   PRINCIPAL  AND  AGENT- 
APPOINTMENT. 

4.  Creation  of  Relation. 
6.  Estoppel. 

6.  Agency  by  Appointment. 

7.  Form  of  Appointment. 

8.  Appointment  to  Execute  Deed. 

9.  Agency  by  Estoppel. 
10.  Agency  from  Necessity. 

CREATION    OF    RELATION. 

4.   The  relation  of  principal  and  agent  may  be   created— 

(1)  By  appointment; 

(2)  By  ratification. 

ESTOPPEL. 


Except  under  the  peculiar  circumstances,  when  an  agency 
is  sometimes  said  to  be  created  by  operation  of  law  or  of 
necessity,1  the  relation  of  principal  and  agent  is  founded  up- 
on agreement  or  mutual  assent.2  The  assent  of  the  principal 
may  be  given  before  performance  of  the  agent's  act;  that 

§§  4-5.    *  Post,  p.  39. 

2  Pole  v.  Leask,  33  L.  J.  Ch.  155,  161;  Marwick  v.  Harding- 
ham,  15  Ch.  D.  349;  Graves  v.  Horton,  38  Minn.  66,  35  N.  W.  568: 
McGoldrick  v.  Willits,  52  N.  Y.  612,  617;  Green  v.  Hinkley,  52 
Iowa,  633,  3  N.  W.  688;  First  Nat.  Bank  v.  Free,  67  Iowa,  11,  24 
N.  W.  566. 

Where  L.  by  letter  made  an  offer  to  B.,  and  referred  him  to  M. 
as  L.'s  agent,  but  failed  to  instruct  M.,  and  B.  communicated  his 
acceptance  to  M.,  who  declined  to  act  for  want  of  instructions, 


16  CREATION  OF  RELATION APPOINTMENT.  (Ch.  2 

is,  by  appointment  of  the  agent.8  Or  it  may  be  given  after 
performance;  that  is,  by  ratification.4  Mutual  assent  is  not 
essential,  it  is  true,  to  create  a  so-called  agency  by  estoppel,8 
but  in  that  case  the  relation  of  principal  and  agent  does  not 
actually  exist,  although  as  against  a  third  person  who  has 
been  led  to  deal  with  the  supposed  agent  in  the  belief  that  it 
exists  the  principal  is  estopped  to  deny  its  existence. 

AGENCY  BY  APPOINTMENT. 

G.  The  appointment  of  an  agent  may  be  express  or  implied. 
It  may  be  effected  (a)  by  a  contract  of  employment, 
or  (b)  by  request  of  the  principal  for  performance 
of  an  act,  followed,  by  the  entrance  by  the  agent  npon 
its  performance. 

The  agreement  which  forms  the  basis  of  the  relation  of 
principal  and  agent  is  commonly  called  a  contract  of  agency.1 
It  must  be  borne  in  mind,  however,  that  the  legal  consequen- 
ces of  the  relation  are  twofold.  On  the  one  hand  it  results 
from  the  relation  that  the  act  of  the  agent  within  the  scope 
of  the  agency  is,  as  against  third  persons,  the  act  of  the 
principal.  On  the  other  hand,  from  the  relation  result,  as 
between  principal  and  agent,  certain  mutual  obligations,2  as 
the  duty  on  the  part  of  the  principal  to  compensate  and  in- 

L.  was  not  bound  by  the  intended  acceptance.  Barr  v.  Lapsley,  1 
Wheat.  (U.  S.)  151,  4  L.  Ed.  58. 

"An  agency  is  created— authority  Is  actually  conferred— very  much 
as  a  contract  is  made,  i.  e.,  by  an  agreement  between  the  prin- 
cipal and  agent  that  such  a  relation  shall  exist.  The  minds  of  the 
parties  must  meet  in  establishing  the  agency.  The  principal  must 
intend  that  the  agent  shall  act  for  him,  and  the  agent  must  in- 
tend to  accept  the  authority  and  act  on  it,  and  the  intention  of 
the  parties  must  find  expression  either  in  words  or  conduct  be- 
tween them."  Central  Trust  Co.  v.  Bridges,  6  C.  C.  A.  539,  57  Fed. 
753,  764,  per  Taft,  J. 

«  Post,  56.  4  Post,  p.  36.  B  Post,  p.  34. 

86.  i  Evans,  Ag.  2;  Mechem,  Ag.  §  3.  See  definitions  of  Agency, 
ante.  p.  3,  note. 

2  Post,  pp.  395-476. 


AGENCY   BT  APPOINTMENT.  17 

demnify  the  agent,  and  the  duty  on  the  part  of  the  agent  to 
obey  instructions,  to  exercise  due  care,  and  to  account.  So 
far  as  concerns  the  liability  of  the  principal  to  third  persons, 
it  is  wholly  immaterial  whether  the  agreement  between  prin- 
cipal and  agent  has  the  character  of  a  contract  or  falls  short 
of  contract.  It  is  not  even  necessary,  indeed,  that  the  agent 
have  capacity  to  contract.8  The  principal  is  bound  by  the 
act  of  the  agent  simply  because  he  has  authorized  it.  On 
the  other  hand,  the  mutual  obligations  of  principal  and  agent 
rest  largely,  if  not  wholly,  upon  contract,  express  or  implied. 
Thus,  though  a  principal  may  be  bound  by  the  act  of  an  agent 
who  is  devoid  of  contractual  capacity,  he  could  not,  because 
of  the  absence  of  a  valid  contract,  maintain  an  action  against 
the  agent  for  failure  to  obey  instructions,  nor  could  the  agent 
maintain  an  action  to  recover  compensation. 

The  appointment  of  an  agent  may  be  effected  by  a  con- 
tract whereby  the  principal  promises  to  employ  and  com- 
pensate the  agent  and  the  agent  promises  to  act  as  such,  or  it 
may  be  effected  by  the  mere  request  or  permission  of  the 
principal  followed  by  the  agent's  entrance  upon  performance 
of  the  act  requested.*  In  the  first  case  the  relation  of  prin- 
cipal and  agent  is  at  once  created.  The  principal  may,  in- 
deed, before  performance  by  the  agent,  revoke  the  authority 
and  terminate  the  relation,6  or  the  agent  may  terminate  it  by 
renouncing  the  authority,6  subject  in  either  case  to  the  right 
of  the  other  to  recover  damages  for  breach  of  the  con- 
tract of  employment;  but  until  revocation  or  renunciation 
any  act  of  the  agent  within  the  scope  of  the  agency  is  bind- 
ing upon  the  principal  and  the  mutual  obligations  of  principal 
and  agent  subsist.  The  agreement,  to  be  a  contract  and  mu- 
tually binding,  must,  of  course,  be  founded  upon  considera- 
tion, although  without  consideration  it  would  still  be  oper- 
ative as  a  request.  In  the  second  case,  where  no  contract  is 
entered  into  in  advance,  but  the  agent  acts  in  pursuance  of 

»  Post,  p.  105.  5  post,  p.  136. 

«  Anson,  Contr.  332,  333.  «  Post,  p.  136. 

TIFF.P.&  A.-2 


18  CREATION  OF  RELATION APPOINTMENT.  (Gh.  2 

request  or  permission,  the  relation  of  principal  and  agent 
does  not  arise  until  the  agent  has  entered  upon  performance. 
The  request  may  take  the  form  of  an  offer  to  compensate  the 
agent  if  he  will  perform  an  act ; 7  or  it  may  be  a  simple  re- 
quest without  offer  of  compensation,  but  from  which  the  law, 
if  there  are  no  circumstances  to  negative  the  implication, 
will  imply  an  offer  of  reasonable  compensation.8  In  either 
case,  if  the  agent  enters  upon  performance  of  the  act,  he 
thereby  signifies  his  acceptance  of  the  offer,  and  if  he  be 
competent  to  contract  a  contract  of  agency  is  formed;  but, 
whether  he  be  competent  or  not,  the  act  performed  is  bind- 
ing upon  the  principal. 

Gratuitous  Agency. 

An  executory  agreement  of  employment,  which  contem- 
plates gratuitous  services  on  the  part  of  the  agent,  is  without 
consideration  and  nudum  pactum.9  No  obligation  arises  un- 
der it,  up  to  the  moment  it  is  acted  upon.10  Of  course,  con- 
sideration for  the  agent's  promise  is  material  only  so  far  as 
it  affects  the  mutual  obligations  of  principal  and  agent,  since 
want  of  consideration  cannot  affect  the  liability  of  the  prin- 
cipal towards  third  persons  for  acts  which  he  has  author- 
ized.11 Once  acted  upon,  the  authority  to  that  extent  is  ir- 

T  Roberts  v.  Ogilby,  9  Price,  269. 

»  Van  Arman  v.  Byington,  38  111.  443.  Of.  Hall  v.  Finch,  29  Wis. 
278,  9  Am.  Rep.  559;  Hertzog  v.  Hertzog,  29  Pa.  465.  Post,  p.  442. 

»  Thome  v.  Deas,  4  Johns.  (N.  Y.)  84;  Wilkinson  v.  Coverdale, 
1  Esp.  75.  Of.  Elsee  v.  Gateward,  5  T.  R.  173;  Balfe  v.  West,  13 
C.  B.  466;  Benden  v.  Manning,  2  N.  H.  289. 

10  "The  law  on  this  point  is  somewhat  obscure.    Perhaps  it  may 
best  be  explained  by  saying  that,  where  a  man  undertakes  to  act 
as  agent  or  do  any  other  service  for  another  gratuitously,  the  con- 
tractual liability  does  not  arise  till  he  has  entered  upon  the  work 
and  so  affected  the  position  of  his  employer;    and  that  up  to  that 
moment  there  is  nothing  but  a  request  to  him  to  do  the  work  im- 
porting a  promise  to  indemnify  him  for  losses  which  may  be  in- 
curred if  he  do  it."     Anson,  Contr.  333. 

11  Haluptzok  v.  Railway  Co.,  55  Minn.  446,  57  N.  W.  144,  26  L. 
R.  A.  739  (master  and  servant);  Huff  cut,  Ag.  §  28. 


§  6)  AGENCY  BY  APPOINTMENT.  19 

revocable,  and  the  act  performed  is  binding  upon  the  prin- 
cipal. The  rule  is  accordingly  laid  down  that  a  gratuitous 
agent  is  not  liable  for  nonfeasance,  but  is  liable  for  misfeas- 
ance; in  other  words,  that  until  he  has  entered  upon  the 
work  he  is  under  no  obligation,  but  that  if  he  has  entered  up- 
on it,  and  so  affected  the  position  of  his  employer,  he  be- 
comes liable  for  negligence  in  performance.18  Thus,  one 
who  has  gratuitously  undertaken  to  procure  insurance  for 
another  incurs  no  liability  by  failure  to  insure,  but  if  he 
proceeds  to  carry  his  undertaking  into  effect  by  getting  a 
policy,  and  does  it  so  negligently  that  the  other  cannot  re- 
cover upon  the  policy,  he  is  liable  to  an  action.18  How  far 
the  measure  of  the  skill  and  care  which  the  gratuitous  agent 
who  enters  upon  performance  owes  to  his  principal  is  affected 
by  the  fact  that  the  agency  is  gratuitous  will  be  considered 
later.1* 

i*  Wilkinson  v.  Coverdale,  1  Esp.  75;  Walker  v.  Smith,  1  Wash. 
O.  0.  (U.  S.)  152,  Fed.  Cas.  No.  17,086;  Williams  v.  Higgins,  30 
Md.  404;  Passano  v.  Acosta,  4  La.  26,  23  Am.  Dec.  470;  Spencer 
v.  Towles,  18  Mich.  9;  Isham  v.  Post,  141  N.  Y.  100,  35  N.  E.  1084, 
23  L.  R.  A.  90,  38  Am.  St  Rep.  766. 

is  in  Thome  v.  Deas,  4  Johns.  (N.  Y.)  84,  where  a  part  owner  of 
a  vessel,  at  the  request  of  another  part  owner,  gratuitously  under- 
took to  get  the  vessel  insured,  but  neglected  to  do  so,  and  the  vessel 
was  lost,  it  was  held  that  no  action  lay.  Kent,  O.  J.:  "Will,  then, 
an  action  lie  where  one  party  intrusts  the  performance  of  a  business 
to  another,  who  undertakes  to  do  it  gratuitously,  and  wholly  omits 
to  do  it?  If  the  party  who  makes  this  engagement  enters  upon 
the  execution  of  the  business,  and  does  it  amiss,  through  the  want 
of  due  care,  by  which  damage  ensues  to  the  other  party,  an  action 
will  lie  for  this  misfeasance.  But  the  defendant  never  entered 
upon  the  execution  of  his  undertaking,  and  the  action  is  brought 
for  nonfeasance.  Sir  William  Jones,  in  his  essay  on  the  Law  of 
Bailments,  considers  this  species  of  undertaking  to  be  as  extensively 
binding  in  the  English  law  as  the  contract  of  mandatum  in  the 
Roman  law,  and  that  an  action  will  lie  for  damage  occasioned  by 
the  nonperformance  of  a  promise  to  become  a  mandatary,  though 
the  promise  be  purely  gratuitous.  *  *  *  He  has  not  produced  a 
single  adjudged  case,  but  only  some  dicta  (and  those  equivocal) 
from  the  Year  Books,  in  support  of  his  opinion." 

n  Post,  p.  410. 


20  CREATION  OF  RELATION — APPOINTMENT.  (Ch.  2 


FORM   OF  APPOINTMENT. 

T.  Unless  otherwise  provided  by  statute,  authority  for  any 
purpose  except  the  execution  of  a  deed  may  be  confer- 
red upon  an  agent  by  deed,  by  writing,  by  word  of 
month,  or  by  conduct. 

APPOINTMENT  TO  EXECUTE  DEED. 

8.  Authority  to  execute  a  deed  must  be  conferred  by  instru- 
ment under  seal,  except  where  the  deed  is  executed  by 
the  agent  in  the  presence  of  the  principal,  at  his  re- 
quest. 

In  General. 

Ordinarily  no  particular  form  is  essential  to  the  appoint- 
ment of  an  agent.1  The  consent  or  authorization  of  the  prin- 
cipal may  be  express  or  implied.  It  may  be  expressed  in  the 
form  of  a  writing  under  seal  or  power  of  attorney,  or  of  in- 
formal written  instrument,  as  by  letter  of  instructions,  or  of 
mere  oral  request ;  or  it  may  be  implied  from  conduct.2  Au- 
thority may  be  conferred  by  parol,  not  only  to  make  ordinary 
simple  contracts,8  but  to  execute  bills  of  exchange  and  prom- 

§§  7-8.  i  Story,  Ag.  §  45  et  seq.;  Long  v.  Colburn,  11  Mass.  97, 
6  Am.  Dec.  160;  Farmers'  &  Mechanics'  Bank  v.  Bank,  16  N.  Y. 
125,  144,  69  Am.  Dec.  678. 

*  Post,  p.  32. 

a  Emerson  v.  Manufacturing  Co.,  12  Mass.  237,  7  Am.  Dec.  66; 
Shaw  v.  Nudd,  8  Pick.  (Mass.)  9;  Small  v.  Owings,  1  Md.  Ch.  363; 
Wagoner  v.  Watts,  44  N.  J.  Law,  126;  Kirkliu  v.  Association,  107 
Ga.  313,  33  S.  E.  83:  Welch  v.  Hoover,  5  Cranch,  C.  C.  444,  Fed. 
Gas.  No.  17,368;  Sheets  v.  Selden,  2  Wall.  (U.  S.)  177,  17  L.  Ed.  822 
(to  demand  payment). 

Under  an  act  making  signing  the  memorandum  of  association  of 
a  company  equivalent  to  signing  and  sealing,  an  agent  could  sign 
although  only  verbally  authorized.  Eley  v.  Positive  Government 
An.  Ass.  Co.,  1  Ex.  D.  88. 

"At  common  law,  where  a  person  authorizes  another  to  sign  for 
him,  the  signature  of  the  person  so  signing  is  the  signature  of  the 
person  authorizing  It.  Nevertheless  there  may  be  cases  where  the 
statute  requires  a  personal  signature.  The  common-law  rule,  'qui 


§§  7-8)  APPOINTMENT   TO    EXECUTE    DEED.  21 

issory  notes  *  and  contracts  for  the  sale  of  real  estate.*  So, 
too,  the  agent's  consent  or  acceptance  of  the  authority  may 
be  express,  or  it  may  be  implied  from  his  acting  thereunder. 

Appointment  to  Execute  Instrument  under  Seal. 

It  is  an  ancient  doctrine  of  the  common  law  that  author- 
ity to  execute  an  instrument  under  seal  must  be  evidenced  by 
an  instrument  of  equal  solemnity.  Hence  authority  to  exe- 
cute a  deed  must  be  conferred  by  power  under  seal.8  This 
rule,  however,  does  not  apply  to  an  instrument  executed  by 
another  in  presence  of  the  principal,  at  his  request.7  Thus, 

facit  per  allum  faclt  per  se,'  will  not  be  restricted  except  where  a 
statute  renders  personal  signature  necessary."  Per  Blackburn,  J., 
Reg.  v.  Justices  of  Kent,  L.  R.  8  Q.  B.  305. 

*  Anon.,  12  Mod.  564;    Long  v.*  Colburn,  11  Mass.  97,  6  Am.  Dec. 
160. 

s  Heard  v.  Pilley,  4  Oh.  App.  Gas.  548;  McWhorter  v.  McMahan, 
10  Paige  (N.  Y.)  386;  Long  v.  Hartwell,  34  N.  J.  Law,  116;  Keim 
v.  O'Reilly.  54  N.  J.  Eq.  418,  34  Atl.  1073;  Baum  v.  Dubois,  43  Pa. 
260;  Curtis  v.  Blair,  26  Miss.  309,  59  Am.  Dec.  257;  Johnson  v. 
Dodge,  17  111.  433;  Hammond  v.  Hannin,  21  Mich.  374,  4  Am.  Rep. 
490;  Brown  v.  Eaton,  21  Minn.  409;  Riley  v.  Minor,  29  Mo.  439; 
Rottman  v.  Wasson,  5  Kan.  552.  Proof  of  authority  must  be  clear. 
Proudfoot  v.  Wightman,  78  111.  553;  Bosseau  v.  O'Brien,  4  Biss. 
(U.  S.)  395,  Fed.  Gas.  No.  1,667.  Where  a  lease  need  not  be  under 
seal,  it  may  be  executed  by  an  agent  authorized  by  parol.  Lake 
v.  Campbell,  18  111.  106. 

•  Berkley  v.  Hardy,  8  D.  &  R.  102,  4  B.  &  C.  355;    Banorgee  v. 
Hovey,  5  Mass.  11,  4  Am.  Dec.   17;    Blood  v.  Goodrich.  9  Wend. 
(N.  Y.)  68,  24  Am.  Dec.  121;   Paine  v.  Tucker,  21  Me.  138,  38  Am. 
Dec.  255;    Heath  v.  Nutter,  50  Me.  378;    Cooper  v.  Rankin,  5  Bin. 
(Pa.)  613;    Gordon  v.  Bulkeley,  14  Serg.  &  R.   (Pa.)  331;    Perry  v. 
Smith,  29  N.  J.  Law,  74;    Rowe  v.  Ware,  30  Ga.  278;    Overman  v. 
Atkinson,  102-  Ga.  750,  29  S.  E.  758;    Elliott  v.  Stocks,  67  Ala.  336; 
Peabody  v.  Hoard,  46  111.  242;    McMurtry  v.  Brown,  6  Neb.  368. 

A  partner  cannot  bind  his  firm  by  deed  unless  authorized  under 
seal.  Harrison  v.  Jackson,  7  T.  R.  207. 

^  Ball  v.  Dunsterville,  4  T.  R.  313;  King  v.  Longnor,  4  B.  &  Ad. 
647;  Hudson  v.  Revett,  5  Bing.  368  (filling  blanks);  Gardner  v. 
Gardner,  5  Cush.  (Mass.)  483,  52  Am.  Dec.  740;  Mutual  Ben.  Life 
Ins.  Co.  T.  Brown,  30  N.  J.  Eq.  193;  Meyer  v.  King,  29  La.  Ann. 


22  CREATION  OF  RELATION APPOINTMENT.       (Ch.  2 

where  the  grantor's  daughter  offered  to  sign  a  deed  for  her 
mother,  who  assented  with  a  nod,  and  her  daughter  signed 
her  mother's  name,  "P.  G.,  by  M.  C.  G.,"  it  was  held  that  the 
deed  was  well  executed.  "The  name  being  written  by  an- 
other hand,"  said  Shaw,  C.  J.,  "in  the  presence  of  the  grantor, 
and  at  her  request,  is  her  act.  The  disposing  capacity,  the 
act  of  mind,  which  are  the  essential  and  efficient  ingredi- 
ents of  the  deed,  are  hers,  and  she  merely  uses  the  hand  of 
another,  through  incapacity  or  weakness,  instead  of  her  own, 
to  do  the  physical  act  of  making  a  written  sign.  Whereas,  in 
executing  a  deed  by  attorney,  the  disposing  power,  though 
delegated,  is  with  .the  attorney,  and  the  deed  takes  effect 
from  his  act ;  and  therefore  the  power  is  to  be  strictly  exam- 
ined and  construed,  and  the  instrument  conferring  it  is  to  be 
proved  by  evidence  of  as  high  a  nature  as  the  deed  itself."  * 
It  does  not  necessarily  follow  that  a  sealed  instrument  exe- 
cuted by  an  agent  under  parol  authority  is  without  effect.  If 
a  contract  need  not  be  by  specialty,  it  will  be  valid  as  a 


567;  Eggleston  v.  Wagner,  46  Mich.  610,  10  N.  W.  37;  Croy  v. 
Busenbark,  72  Ind.  48;  Jansen  v.  McCahill,  22  Oal.  563,  83  Am.  Dec. 
84.  But  see  Wallace  v.  McCollough,  1  Rich.  Eq.  (S.  C.)  426;  Brown, 
St.  Frauds,  §  10  et  seq.  Cf.  Inhabitants  of  South  Berwick  v. 
Huntress,  53  Me.  89,  87  Am.  Dec.  535,  per  Kent,  J. 

Where  the  name  of  the  grantor  In  a  deed  was  signed  by  the 
grantee  at  the  grantor's  request,  and  in  his  presence,  and  he  ac- 
knowledged the  deed  and  delivered  it,  he  thereby  adopted  the  sig- 
nature and  made  the  deed  valid.  "The  validity  of  the  deed  cannot 
rest  upon  the  ground  of  agency  or  ratification.  If  such  were  the 
case,  the  authority  or  ratification  would  have  to  be  by  instrument 
under  seal.  *  *  *  An  agent  cannot  contract  with  himself.  He 
cannot,  as  agent  for  the  grantor,  execute  a  deed  to  himself.  But 
he  can  prepare  a  deed  running  to  himself,  even  to  the  signing  and 
sealing,  and  if  the  grantor  then  adopts  the  deed,  by  personally 
acknowledging  and  delivering  it,  it  will  be  a  legal  and  valid  instru- 
ment. But  its  validity  rests  upon  the  ground  of  adoption,  not 
agency  or  ratification."  Per  Walton,  J.,  Clough  v.  Clough,  73  Me. 
487,  40  Am.  Rep.  386. 

*  Gardner  v.  Gardner,  5  Cush.  (Mass.)  483,  52  Am.  Dec.  740. 


§§  7-8)  APPOINTMENT  TO   EXECUTE   DEED.  23 

simple  contract,  notwithstanding  that  a  seal  was  attached.9 
So  a  conveyance  executed  by  an  agent  authorized  only  by 
parol  may  have  effect  in  equity  as  a  contract  to  convey,  and 
support  a  suit  for  specific  performance.10 

Same — Authority  to  Fill  Blanks. 

It  follows  logically,  from  the  rule  that  authority  to  exe- 
cute an  instrument  must  be  of  as  high  a  nature  as  the  in- 
strument executed,  that  authority  to  fill  blanks  in  an  instru- 
ment under  seal  must  be  conferred  by  power  under  seal.  A 
deed  or  bond,  it  is  urged,  although  otherwise  executed,  if 
incomplete  by  reason  of  the  omission  of  a  material  part,  as 
the  name  of  the  grantee  or  obligee  or  the  description  of  the 
premises  conveyed,  is  a  nullity,  and  cannot  become  operative 
until  the  omitted  part  has  been  inserted  and  the  instrument 
afterwards  duly  delivered,  and  it  is  accordingly  held  by  those 
courts  which  have  jealously  maintained  the  sanctity  of  a  seal 
that  authority  thus  to  complete  a  sealed  instrument  can- 

»  Worrall  v.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330;  Long  v.  Hart- 
well,  34  N.  J.  Law,  116;  Wagoner  v.  Watts,  44  N.  J.  Law,  126; 
Dickerman  v.  Ashton,  21  Minn.  538;  Hammond  v.  Hannin,  21  Mich. 
374,  4  Am.  Rep.  490;  Ledbetter  v.  Walker,  31  Ala.  175;  Shuetze  v. 
Bailey,  40  Mo.  69;  Marshall  v.  Rugg,  6  Wyo.  270,  44  Pac.  700,  45 
Pac.  486,  33  L.  R.  A.  679;  Nichols  v.  Haines,  39  0.  C.  A.  235,  98 
Fed.  692.  Contra,  Wheeler  v.  Nevins,  34  Me.  54;  Baker  v.  Free- 
man, 35  Me.  485. 

10  Morrow  v.  Higgins,  29  Ala.  448;  Groff  v.  Ramsey,  19  Minn.  44 
(Gil.  24);  Hersey  v.  Lambert,  50  Minn.  373,  52  N.  W.  963;  Watson 
v.  Sherman,  84  111.  263;  Jones  v.  Marks,  47  Cal.  242. 

Where  defendant  executed  a  deed,  leaving  blanks  for  the  name 
of  the  grantee  and  the  price,  and  gave  it  to  an  agent,  with  instruc- 
tions when  he  had  sold  the  land  to  fill  up  the  blanks  and  deliver 
to  the  purchaser,  which  the  agent  did,  held  that,  although  the  in- 
strument was  inoperative  as  a  deed  because  incomplete  when  signed 
and  sealed,  it  could  be  enforced  by  the  purchaser  by  way  of  specific 
performance  as  a  contract  of  sale,  it  having  been  in  legal  effect 
signed  by  defendant  in  his  name  by  his  lawfully  authorized  agent, 
and  the  statute  of  frauds  being  thus  satisfied.  Blacknall  v.  Parish, 
69  N.  C.  70,  78  Am.  Dec.  239. 


24          CREATION  OF  RELATION APPOINTMENT.       (Ch.  2 

not  be  conferred  by  parol.11  The  part  filled  in  must,  of 
course,  be  material,  since  if  immaterial  the  instrument  is 
in  effect  already  complete,  and  an  immaterial  alteration  of  an 
instrument,  not  being  fraudulent,  does  not  invalidate  it.12 
The  strictness  of  the  rule  has,  however,  been  mitigated  by  in- 
voking the  principle  of  estoppel,  even  by  courts  which 
might  not  be  disposed  to  concede  that  authority  to  fill  blanks 
may  be  conferred  by  parol.  Thus  it  has  been  held  that  when 
a  grantor  signs  and  seals  a  deed,  leaving  unfilled  blanks,  and 
gives  it  to  an  agent  with  authority  to  fill  the  blanks  and 
deliver  it,  if  the  agent  fills  the  blanks  as  authorized,  and  de- 
livers it  to  an  innocent  grantee  without  knowledge,  the  gran- 
tor is  estopped  to  deny  that  the  deed  as  delivered  was  his 
deed.13  From  this  position  it  is  an  easy  step  to  that  of  hold- 
ing that  the  principal  is  estopped  although  the  agent  fills 
in  the  blanks  otherwise  than  as  authorized,  if  he  delivers  to 
an  innocent  grantee  or  obligee  without  notice  from  the 
face  of  the  instrument  or  otherwise  of  the  breach  of  orders.1* 

11  Hibble white  v.  McMorine,  6  M.  &  W.  200  (overruling  Texira  v. 
Evans,  cit.  1  Anst.  228);    United  States  v.  Nelson,  2  Brock.  (U.  S.) 
64,   Fed.   Cas.   No.    15,862;    Burns  v.   Lynde,   6  Allen    (Mass.)   305; 
Graham   v.   Holt,  25   N.  C.   300,   40  Am.  Dec.   408;    Davenport   v. 
Sleight,  19  N.  C.  381,  31  Am.  Dec.  420;    Preston  v.  Hull,  23  Grat. 
(Va.)  600,  14  Am.  Rep.  153;    Ingram  v.  Little,  14  Ga.  173,  58  Am. 
Dec.  549;   Williams  v.  Crutcher,  6  How.  (Miss.)  71;    State  v.  Boring, 
15  Ohio,  507;   Adamson  v.  Hartman,  40  Ark.  58;    Upton  v.  Archer, 
41  Cal.  85,  10  Am.  Rep.  206. 

12  Vose  v.  Dolan,  108  Mass.  155,  11  Am.  Rep.  331. 

is  Phelps  v.  Sullivan,  140  Mass.  36,  2  N.  E.  121,  54  Am.  Rep.  442. 
See,  also,  Campbell  v.  Smith,  71  N.  Y.  26,  27  Am.  Rep.  5. 

i*  Where  an  administrator's  bond  executed  in  blank  by  a  surety 
Is  intrusted  to  the  principal  for  his  use,  to  fill  it  up  and  deliver 
it,  the  possibility  of  his  being  required  by  the  probate  judge  to 
insert  a  penal  sum  larger  than  the  surety  directed,  and  of  his 
doing  so,  is  so  obvious  that  the  surety  must  be  held  to  take  the 
risk  of  his  principal's  conduct,  and  Is  bound  by  the  instrument 
as  delivered,  although  delivered  in  disobedience  of  orders,  if  the 
obligee  had  no  notice,  from  the  face  of  the  bond  or  otherwise,  of 
the  breach  of  orders.  White  v.  Duggan,  140  Mass.  18,  2  N.  E.  110, 


§§7-8)  APPOINTMENT  TO   EXECUTE   DEED.  25 

Many  courts,  however,  have  so  far  recognized  an  excep- 
tion to  the  rule  requiring  authority  to  execute  sealed  instru- 
ments to  be  under  seal  as  to  declare  that  parol  authority  is 
sufficient  to  authorize  the  filling  of  a  blank.15  Thus,  in  a  Min- 

54  Am.  Rep.  437.  It  is  to  be  noticed  that  subsequently  in  Phelps 
v.  Sullivan,  140  Mass.  36,  2  X.  E.  121,  54  Am.  Rep.  442,  the  court 
said:  "Whether,  if  the  agent  violates  the  instructions  in  filling 
blanks,  the  grantor  would  not  in  like  manner  be  bound,  we  do  not 
discuss." 

is  State  v.  Young,  23  Minn.  551;  Inhabitants  of  South  Berwick  v. 
Huntress,  53  Me.  89,  87  Am.  Dec.  535;  Bridgeport  Bank  v.  Railroad 
Co.,  30  Conn.  274;  Wiley  v.  Moor,  17  Serg.  &  R.  (Pa.)  438,  17  Am. 
Dec.  696;  Duncan  v.  Hodges,  4  McCord  (S.  C.)  239,  17  Am.  Dec.  734; 
State  v.  Pepper,  31  Ind.  76;  Swartz  v.  Ballou,  47  Iowa,  188,  29  Am. 
Rep.  470;  Van  Etta  v.  Eveusou,  28  Wis.  33,  9  Am.  Rep.  486;  Schintz 
v.  McManamy,  33  Wis.  299;  Field  v.  Stagg,  52  Mo.  534,  14  Am.  Rep. 
435;  Garland  v.  Wells,  15  Neb.  298,  18  N.  W.  132;  Cribben  v.  Deal, 
21  Or.  211,  27  Pac.  1046,  28  Am.  St.  Rep.  746;  Palacios  v.  Brasher, 
18  Colo.  593,  34  Pac.  251,  36  Am.  St  Rep.  305. 

"Although  it  was  at  one  time  doubted  whether  a  parol  authority 
was  adequate  to  authorize  an  alteration  or  condition  to  a  sealed 
instrument,  the  better  opinion  at  this  day  is  that  the  power  is  suf- 
ficient." Drury  v.  Foster,  2  Wall.  (U.  S.)  24,  17  L.  Ed.  780,  per 
Nelson,  J.  In  Allen  v.  Withrow,  110  U.  S.  119,  3  Sup.  Ct.  517,  28 
L.  Ed.  90,  Field,  J.,  after  quoting  with  approval  the  above  dictum, 
observed:  "But  there  are  two  conditions  essential  to  make  a  deed 
thus  executed  in  blank  operate  as  a  conveyance.  *  *  *  The 
blank  must  be  filled  by  the  party  authorized  to  fill  it,  and  this  must 
be  done  before  or  at  the  time  of  the  delivery  of  the  deed  to  the 
grantee  named."  In  Drury  v.  Foster,  supra,  a  married  woman  ex- 
ecuted and  acknowledged  a  mortgage  on  her  land,  with  the  name 
of  the  mortgagee  and  the  amount  in  blank,  and  intrusted  it  to  her 
husband  to  secure  a  loan  for  a  few  hundred  dollars.  He  borrowed 
$12,800  of  plaintiff,  filling  in  his  name  and  the  amount,  plaintiff 
being  ignorant  that  the  items  were  inserted  before  execution,  and 
the  wife  being  Ignorant  of  the  amount  borrowed  and  receiving  no 
benefit.  It  was  held,  in  an  action  to  foreclose,  that  these  facts 
furnished  her  a  defense.  "By  the  laws  of  Minnesota,"  said  the 
court,  "an  acknowledgment  of  the  execution  of  a  deed  before  the 
proper  officers,  privately  and  apart  from  her  husband,  by  a  feme 
covert,  is  an  essential  prerequisite  to  the  conveyance  of  her  real 
estate.  *  *  *  And  she  is  disabled  from  executing  or  acknowledg- 


26  CREATION   OF  RELATION APPOINTMENT.  (Cfal.  2 

nesota  case,16  Mitchell,  J.,  said:  "Whatever  may  formerly 
have  been  the  rule,  *  *  *  we  think  the  better  opinion, 
both  on  principle  and  authority,  is  that  parol  authority  is 
adequate  and  sufficient  to  authorize  an  addition  to,  or  altera- 
tion of,  even  a  sealed  instrument.  At  the  present  day,  the  dis- 
tinction between  sealed  and  unsealed  instruments  is  arbitrary, 
meaningless,  and  unsustained  by  reason.  The  courts  have, 
for  nearly  a  century,  been  gradually  doing  away  with  the  for- 
mer distinctions  between  these  two  classes  of  instruments, 
and  if  they  have  not  yet  wholly  disappeared  it  simply  proves 
the  difficulty  of  disturbing  a  rule  established  by  long  usage, 
even  if  the  reason  for  the  rule  has  wholly  ceased  to  exist. 

ing  a  deed  by  procuration,  as  she  cannot  make  a  power  of  attor- 
ney. *  *  *  We  agree  if  she  was  competent  to  convey  her  real 
estate  by  signing  and  acknowledging  the  deed  in  blank,  and  de- 
livering the  same  to  an  agent,  with  an  express  or  implied  authority 
to  fill  up  the  blank  and  perfect  the  conveyance,  that  its  validity 
should  not  well  be  controverted.  *  *  *  But  there  are  two  in- 
superable objections  to  this  view  in  the  present  case:  First,  Mrs. 
Foster  was  disabled  in  law  from  delegating  a  person,  either  in 
writing  or  parol,  to  fill  up  the  blanks  and  deliver  the  mortgage; 
and,  second,  there  could  be  no  acknowledgment  of  the  deed,  within 
the  requisitions  of  the  statute,  until  the  blanks  were  filled  and  the 
instrument  complete.  Till  then  there  was  no  deed  to  be  acknowl- 
edged. The  act  of  the  feme  covert  and  of  the  officers  were  nullities." 

Where  a  wife,  with  her  husband,  signed  a  note  running  to  plain- 
tiff, and  delivered  to  her  husband  a  mortgage  blank  as  to  descrip- 
tion, which  he  represented  was  to  cover  his  land,  and  he  inserted 
the  description  of  her  land,  and  plaintiff,  without  notice  of  the 
fraud,  advanced  the  money  thereon,  the  wife  was  bound  by  the 
acts  of  her  husband.  Nelson  v.  McDonald,  80  Wis.  605,  50  N. 
W.  893,  27  Am.  St.  Rep.  71. 

16  state  v.  Young,  23  Minn.   551. 

"Considering  that  the  assumed  difference  [between  bonds  and  sim- 
ple contracts]  rests  on  a  merely  technical  rule  of  the  common  law, 
we  do  not  think  that  the  rule  should  be  extended  beyond  its  neces- 
sary limits,  viz.,  that  a  sealed  instrument  cannot  be  executed  by 
another,  so  far  as  its  distinguishing  characteristic  as  a  sealed 
instrument  is  in  question,  unless  by  an  authority  under  seal."  In- 
habitants of  South  Berwick  v.  Huntress,  53  Me.  89,  87  Am.  Dec. 
535,  per  Kent,  J. 


§§  7-8)  APPOINTMENT  TO   EXECUTE   DEED.  27 

We  therefore  hold  that  parol  authority  is  sufficient  to  author- 
ize the  filling  of  a  blank  in  a  sealed  instrument,  and  that  such 
authority  may  be  given  in  any  way  in  which  it  might  be 
given  in  case  of  an  unsealed  instrument."  It  was  also  held 
that  the  authority  might  be  implied  as  well  as  express.  In 
this  view  it  can  make  no  difference  that  the  grantee  or 
obligee  have  knowledge  that  the  blanks  have  been  filled 
by  the  hand  of  the  agent,  provided,  at  least,  they  have  been 
filled  in  accordance  with  the  authority  conferred ; "  nor  will 
the  principal  be  heard  to  assert,  as  against  an  innocent  gran- 
tee without  notice  that  the  instrument  has  been  completed 
by  the  hand  of  the  agent,  that  the  agent  has  violated  his  in- 
structions.18 

IT  in  State  v.  Young,  23  Minn.  551,  it  was  held  that  the  sureties 
were  bound  upon  a  county  treasurer's  bond  executed  by  them  while 
It  contained  a  blank  for  the  penal  sum.  The  instrument  was  de- 
livered by  the  treasurer  to  the  county  auditor,  that  it  might  be 
presented  by  him  to  the  board  of  county  commissioners  for  their 
approval  and  acceptance,  and  the  amount  of  the  penalty  was  filled 
in  by  him  by  direction  of  the  board,  and  after  approval  by  the 
county  attorney  the  instrument  was  accepted  by  the  board  as  the 
official  bond  of  the  treasurer.  It  was  urged  that  authority  to  the 
board  to  insert  the  amount  could  not  be  implied,  because  the  sure- 
ties did  not  in  fact  know  of  the  existence  of  the  blank.  Mitchell, 
J.,  said:  "The  board  had  a  right  to  presume  that  the  sureties  knew 
*  *  *  there  was  an  apparent  implied  authority  to  the  board, 
upon  which  they  had  a  right  to  act,  and,  having  thus  acted,  the 
sureties  cannot  now  be  heard  to  say  that  they  did  not  know  of 
the  existence  of  the  blank.  In  other  words,  they  are  now  estopped 
from  denying  the  existence  of  the  apparent  and  presumptive  state 
of  facts  which  they,  by  their  conduct,  have  authorized  the  board 
to  believe  and  act  upon;  and  now  the  apparent  authority  with 
which  they  have  clothed  the  board  must  be  held  to  be  the  real 
authority." 

is  Nelson  v.  McDonald,  80  Wis.  605,  50  N.  W.  893,  27  Am.  St. 
Rep.  71;  Butler  v.  United  States,  21  Wall.  (TJ.  S.)  272,  22  L.  Ed. 
614;  Swartz  v.  Ballou,  47  Iowa,  188,  29  Am.  Rep.  470. 


28  CREATION  OF  RELATION APPOINTMENT.  (Ch.  2 

Appointment  to  Execute  Writings  not  under  Seal  —  Statute 
of  Frauds. 

At  common  law  all  contracts  were  comprised  under  the 
heads  either  of  specialties  or  of  parol  contracts,  nor  was 
there  recognized  any  such  third  class  as  contracts  in  writ- 
ing.19 All  contracts  merely  written,  and  not  specialties,  were 
parol  contracts,  and  authority  to  execute  them  might,  as  we 
have  seen,20  be  conferred  without  writing.  Statutes,  in- 
deed, often  require  particular  classes  of  contracts  to  be  in 
writing;  but,  even  where  this  is  the  case,  unless  the  statute 
expressly  or  by  implication  provides  otherwise  authority  to 
execute  such  contracts  may  generally,  as  at  common  law,  be 
conferred  by  word  of  mouth.21 

The  provisions  in  the  statute  of  frauds  2a  in  respect  to  the 
authority  of  agents  to  execute  the  writings  thereby  required 
are  of  two  sorts.  Under  the  first  and  third  sections,  which 
relate  to  the  creation,  transfer,  and  surrender  of  estates  or 
interests  in  land,  the  writings  required,  if  executed  by  agents, 
must  be  signed  by  "agents  thereunto  lawfully  authorized  by 
writing."  2S  In  the  United  States,  as  well  as  in  England  to- 
day,24 the  creation,  assignment,  and  surrender  of  estates  or 
interests  in  land,  with  the  common  exception  of  leases  for  a 
term  not  exceeding  one  year,  are  by  statute  required  to  be 
by  deed,  and  it  is  therefore  necessary  that  agents  should  be 

i»Rann  v.  Hughes,  7  T.  R.  350,  n.;   Pollock,  Contr.  (3d  Ed.)  186. 

20  Ante,  p.  20. 

21  Ely  v.  Positive  Government  L.  Ass.  Co.,  1  Ex.  D.  88. 
2229  Car.  II.  c.  3. 

23  Where  the  statute  requires  that  the  agent  must  be  authorized 
In  writing,  it  has  been  held  that  the  statute  is  not  satisfied  by  a 
signature  by  another,  in  presence  of  the  principal,  at  his  verbal  re- 
quest. Wallace  v.  McCullough,  1  Rich.  Eq.  (S.  C.)  426.  Of.  Bramel 
v.  Byron  (Ky.)  43  S.  W.  695;  Billington  v.  Com.,  79  Ky.  400;  Dick- 
Bon's  Adm'r  v.  Luman,  93  Ky.  614,  20  S.  W.  1038.  But  the  weight 
of  authority  appears  to  be  opposed  to  this  view.  Gardner  v. 
Gardner,  5  Gush.  (Mass.)  483,  52  Am.  Dec.  740,  and  cases  cited  ante, 
p.  21,  note.  See  Browne,  Stat.  Frauds  (5th  Ed.)  $  12b. 

a*  8  &  9  Viet.  106. 


§§  7-8)  APPOINTMENT  TO   EXECUTE   DEED.  29 

appointed  under  seal."  On  the  other  hand,  under  the  fourth 
section  of  the  statute  of  frauds,  which  relates  to  special  prom- 
ises of  executors  and  administrators  to  answer  out  of  their 
own  estate,  special  promises  to  answer  for  the  debt,  default, 
or  miscarriage  of  others,  agreements  made  upon  considera- 
tion of  marriage,  contracts  or  sales  of  lands  and  interests  in 
land,  and  agreements  not  to  be  performed  within  one  year, 
and  which  requires  the  agreement,  or  some  memorandum 
or  note  thereof,  to  be  in  writing,  the  writing  may  be  signed 
by  the  party  to  be  charged,  "or  some  other  person  thereunto 
by  him  lawfully  authorized."  So,  too,  under  the  seventeenth 
section,  relating  to  contracts  for  the  sale  of  goods,  wares, 
and  merchandises  for  the  price  of  £10  or  over,  the  note  or 
memorandum  which  is  one  of  the  means  by  which  the  stat- 
ute may  be  satisfied  may  be  signed  by  an  agent  "thereunto 
lawfully  authorized."  Under  the  fourth  and  seventeenth  sec- 
tions in  England  and  in  America,  in  those  states  where  the 
substance  of  these  sections  has  been  re-enacted,  it  is  held  that 
the  manner  in  which  the  agent  may  be  "lawfully  authorized" 
is  left  to  the  rules  of  the  common  law,  and  hence  that  the 
agent  need  not  be  authorized  by  writing,  and  that  any  form 
of  ratification  is  sufficient.2"  In  some  states,  however,  and 
especially  with  reference  to  contracts  for  the  sale  of  land,  it 
is  enacted  that  the  authority  must  be  in  writing.27 

«  Ante,  p.  21. 

2«  McLean  y.  Dunn,  4  Bing.  722;  Emmerson  v.  Heelis,  2  Taunt 
38;  Soames  v.  Spencer,  1  Dowl.  &  R.  32;  Hawkins  v.  Chace,  19 
Pick.  (Mass.)  502,  505;  Batturs  v.  Sellers,  5  Har.  &  J.  (Md.)  117, 
9  Am.  Dec.  492;  Yerby  v.  Grigsby,  9  Leigh  (Va.)  387;  Conaway  v. 
Sweeney,  24  W.  Va.  643;  Roehl  v.  Haumesser,  114  Ind.  311,  15  N. 
E.  345;  Wiener  v.  Whipple,  53  Wis.  298,  302,  10  N.  W.  433.  40 
Am.  Rep.  775.  But  see  Simpson  v.  Com.,  89  Ky.  412,  12  S.  W.  630. 

27  Ohappell  v.  McKnight,  108  111.  570;  Gerhart  v.  Peck.  42  Mo. 
App.  644;  Hall  v.  Wallace,  88  Oal.  434,  26  Pac.  360;  Oastner  v. 
Richardson,  18  Colo.  496,  33  Pac.  163. 

Where  the  owner  authorized  an  agent  in  writing  to  sell  land, 
and  he  made  a  sale  on  terms  more  favorable  to  the  purchaser,  and 


30          CREATION  OP  RELATION APPOINTMENT.       (Ch.  2 

It  is  to  be  observed  that  Contracts  for  the  employment  of 
agents,  if  by  the  terms  of  the  contract  the  employment  is  to 
continue  for  more  than  one  year,  or  if  performance  within  the 
year  is  impossible,  are  governed  by  the  fourth  section  of  the 
statute  of  frauds,  and  the  agreement,  or  some  memorandum 
or  note  thereof,  must  be  in  writing.28 

Appointment  by  Corporation. 

It  was  formerly  declared  to  be  a  rule,  though  not  without 
exceptions,  that  a  corporation  can  act  only  under  its  common 
seal,29  and  hence  that  the  appointment  of  an  agent  to  act 
for  a  corporation  must  be  by  instrument  under  the  corporate 
seal.  In  England  a  distinction  has  become  established  be- 
tween trading  and  nontrading  corporations,  and  the  rule 
at  the  present  day  appears  to  be  that  the  appointment  of  an 
agent  by  a  nontrading  corporation  must  be  under  the  com- 
mon seal,  except  in  cases  where  the  application  of  the  rule 
would  cause  very  great  inconvenience,  or  tend  to  defeat  the 

the  owner  orally  agreed  to  the  change,  the  contract  of  sale  was 
not  enforceable,  since  the  agent  was  not  authorized  in  writing  to 
make  it.  Kozel  v.  Dearlove,  144  111.  23,  32  N.  E.  542,  36  Am.  St. 
Rep.  416. 

28  Bracegirdle  v.  Heald,  1  B.  &  Aid.  722;  Snelling  v.  Hunting- 
field,  1  C.,  M.  &  R.  20;  Williams  v.  Bemis,  108  Mass.  91,  11  Am. 
Rep.  318. 

Otherwise  if  the  agreement  be  for  performance  of  services  until 
the  happening  of  a  contingency  which  may  happen  within  the  year. 
Updike  v.  Ten  Broeck,  32  N.  J.  Law,  105;  Kent  v.  Kent,  62  N.  Y. 
560,  20  Am.  Rep.  502. 

An  agreement  to  work  for  a  company  "for  a  term  of  five  years, 
or  so  long  as  A.  shall  continue  to  be  agent  for  the  company." 
Roberts  v.  Rockbottom  Co.,  7  Mete.  (Mass.)  46. 

An  agreement  to  employ  a  person  so  long  as  he  may  be  disabled 
from  an  injury.  East  Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea 
(Tenn.)  397.  Concerning  agreements  not  to  be  performed  within 
one  year,  see  Browne,  Stat.  Frauds,  §  272  et  seq.;  Clark,  Contr. 
108  et  seq. 

2»  East  London  Water  W.  Co.  v.  Bailey,  4  Bing.  283;  1  Bl.  Com. 
475;  Story,  Ag.  §§  52,  53. 


§§  7-8)  APPOINTMENT  TO   EXECUTE   DEED.  31 

very  object  for  which  the  corporation  was  created,30  but  that 
a  trading  corporation  may  appoint  an  agent  by  parol  for  any 
purpose  within  the  scope  of  the  objects  of  its  incorporation.31 
In  the  United  States  the  early  rule  has  been  entirely  repu- 
diated, and  it  is  held  that  a  corporation  may  contract 32  and 
may  confer  authority  upon  agents  for  the  performance  of  any 
act  within  the  scope  of  its  corporate  powers  in  the  same  man- 
ner as  an  individual  may  do,  and  that  the  use  of  the  corporate 
seal  is  not  necessary  unless  the  contrary  be  expressly  provid- 
ed by  its  charter  or  by  some  statute.83  Nor  is  it  necessary 
that  an  appointment  to  execute  a  deed  be  under  seal.  Au- 
thority to  authorize  the  conveyance  of  the  company's  prop- 
erty is  usually  vested  in  the  board  of  directors  or  other  gov- 
erning body,  and  may  be  conferred  by  mere  vote  or  resolu- 
tion of  the  board.8* 

»o  Church  v.  Imperial  Gaslight  Co.,  6  Ad.  &  E.  846;  Mayor  of 
Ludlow  v.  Charlton,  6  M.  &  W.  815. 

si  South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  4  C.  P.  617, 
affirming  L.  R.  3  C.  P.  463;  Henderson  v.  Australian  Steam  Navi- 
gation Co.,  5  El.  &  Bl.  409;  Wright,  Prin.  &  Ag.  24-30;  Bowstead, 
Ag.  art.  24. 

32  Bank  of  Columbia  v.  Patterson,  7  Cranch  (U.  S.)  299,  3  L.  Ed. 
851;  Bank  of  United  States  v.  Dandridge,  12  Wheat  (U.  S.)  64, 
6  L.  Ed.  552. 

83  Bank  of  United  States  v.  Dandridge,  12  Wheat  (U.  S.)  64,  6 
L.  Ed.  552;  City  of  Detroit  v.  Jackson,  1  Doug.  (Mich.)  106;  Peter- 
son v.  City  of  New  York,  17  N.  Y.  449;  Sherman  v.  Fitch,  98  Mass. 
59;  Santa  Clara  Min.  Ass'n  v.  Meredith,  49  Md.  389,  33  Am.  Rep. 
264;  Warren  v.  Insurance  Co.,  16  Me.  439,  33  Am.  Dec.  674;  Ross 
v.  City  of  Madison,  1  Ind.  281,  48  Am.  Dec.  361;  Rockford,  R.  I. 
&  St  L.  R.  Co.  v.  Wilcox,  66  111.  417;  Southgate  v.  Railroad,  61  Mo. 
89;  Smiley  v.  City  of  Chattanooga,  6  Heisk.  (Tenn.)  604;  Crowley 
v.  Mining  Co.,  55  Cal.  273;  Morawetz,  Corp.  §§  338,  504. 

"Burrill  v.  Bank,  2  Mete.  (Mass.)  163,  35  Am.  Dec.  395;  Sav- 
ings Bank  v.  Davis,  8  Conn.  191;  Inhabitants  of  Xobleboro  v.  Clark. 
68  Me.  87,  28  Am.  Rep.  22;  Hopkins  v.  Turnpike  Co.,  4  Humph. 
(Tenn.)  403. 


32  CREATION  OF  RELATION APPOINTMENT.       (Ch.  2 

Implied  Appointment. 

The  appointment  of  an  agent  may  be  implied  as  well  as 
express ;  that  is,  it  may  be  evidenced  by  conduct  as  well  as 
by  words.  Authority  to  act  as  agent  will  be  implied  when- 
ever the  conduct  of  the  principal  is  such  as  to  manifest  his 
intention  to  confer  it.85  The  so-called  implication  is  of 
course  nothing  more  than  a  logical  inference  from  facts,  and 
must  be  distinguished  from  an  estoppel.86  Authority  will 

so  Pole  v.  Leask,  33  L.  J.  N7.  S.  Ch.  155,  161;  Farmers'  &  Me- 
chanics' Bank  v.  Bank,  16  N.  Y.  125,  145,  69  Am.  Dec.  678;  Eagle 
Bank  v.  Smith,  5  Conn.  71,  13  Am.  Dec.  37;  Robinson  v.  Green, 
6  Har.  (Del.)  115;  Kent  v.  Tyson,  20  N.  H.  123;  Header  v.  Page, 
39  Vt.  306;  Matteson  v.  Blackmer,  46  Mich.  393,  9  N.  W.  445;  Co- 
lumbia Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061;  Gibson  v. 
Hardware  Co.,  94  Ala.  346,  10  South.  304. 

"No  one  can  become  the  agent  of  another  person  except  by  the  will 
of  that  other  person.  His  will  may  be  manifested  in  writing  or 
orally,  or  simply  by  placing  another  in  a  situation  in  which,  according 
to  ordinary  rules  of  law,  or  perhaps  it  would  be  more  correct  to  say 
according  to  the  ordinary  usages  of  mankind,  that  other  is  under- 
stood to  represent  and  act  for  the  person  who  has  so  placed  him." 
Pole  v.  Leask,  supra,  per  Lord  Cranworth. 

Proof  that  one  has  acted  for  a  considerable  time  as  agent  is  prima 
facie  proof  of  agency,  since  such  conduct  would  naturally  come  to  the 
knowledge  of  the  principal,  and  the  absence  of  dissent  justifies  the 
inference  that  it  was  authorized.  Neibles  v.  Railroad  Co.,  37 
Minn.  151,  33  N.  W.  322;  Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Wil- 
cox,  66  111.  417;  Singer  Mfg.  Co.  v.  Holdfodt,  86  111.  455,  29  Am.  Rep. 
43;  Reynolds  v.  Collins,  78  Ala.  94;  Anderson  v.  Supreme  Council, 
135  N.  Y.  107,  31  N.  B.  1092. 

ss  "And  because  one  dealing  with  an  agent  may  show  actual 
authority  in  him— that  is,  such  authority  as  the  principal  in  fact 
intended  to  vest  in  the  agent,  although  such  intention  is  to  be  shown 
by  acts  and  conduct,  rather  than  by  express  words — without  show- 
ing that  he  (the  person  dealing  with  the  agent)  knew  when  he 
dealt  with  him  of  the  acts  and  conduct  from  which  the  intention  is 
to  be  implied,  it  was  competent  for  defendant  to  show  the  course 
and  manner  of  conducting  business  in  the  office  of  plaintiff.  *  *  * 
Such  manner  of  conducting  the  business  in  the  office  might  have  been 
proved  as  would  have  justified  the  jury  in  finding  that  the  officers 
must  have  known  of  the  custom  of  the  bookkeeper  and  the  cashier 


§§  7-8)  APPOINTMENT   TO   EXECUTE    DEED.  33 

not  be  conclusively  presumed  unless  the  evidence  is  incon- 
sistent with  any  other  inference.  Thus  where  an  agent  re- 
peatedly performs  acts  not  expressly  authorized,  which  the 
principal  adopts  without  question,  his  conduct  readily  gives 
rise  to  the  inference  that  he  desires  the  agent  to  perform 
other  acts  of  the  same  kind,  and  may  hence  be  evidence  of 
intention  to  vest  the  agent  with  authority  to  perform  them. 
The  weight  of  such  evidence  depends  upon  the  circumstances 
of  each  case,  and  the  nature  of  the  relations  between  the 
principal  and  agent,  and  its  effect  will,  of  course,  be  overcome 
by  any  clear  expression  of  a  contrary  intention.87  But 
where  there  has  been  a  long  course  of  dealing  between  agent 
and  principal,  during  which  the  agent's  authority  has  never 
been  questioned,  the  acquiescence  of  the  principal  is  strong, 
if  not  conclusive,  evidence  of  authority  to  perform  other  acts 
similar  to  those  adopted.38 

in  regard  to  the  checks;  and  had  that  been  found,  and  that  it 
was  acquiesced  in  by  plaintiff,  the  intention  to  vest  authority  might 
have  been  implied.  For  the  sake  of  convenience,  we  must  make 
a  distinction  between  implied  authority — that  is,  such  as  the  prin- 
cipal in  fact  intends  the  agent  to  have,  though  the  intention  be 
implied  from  the  acts  and  conduct  of  the  principal— and  apparent 
authority— that  is,  such  as,  though  not  actually  intended  by  the 
principal,  he  permits  the  agent  to  appear  to  have.  The  rule  as 
to  apparent  authority  rests  essentially  on  the  doctrine  of  estoppel." 
Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061,  per  Gil- 
fillan,  C.  J. 

37  Recognition  of  authority  in  a  single  instance  may  be  so  com- 
prehensive as  to  be  sufficient.  Wilcox  v.  Railroad  Co.,  24  Minn. 
269.  Cf.  Green  v.  Hinkley,  52  Iowa,  633,  3  N.  W.  688;  Graves  v. 
Horton,  38  Minn.  66.  35  N.  W.  568. 

ss  Farmers'  &  Mechanics'  Bank  v.  Bank,  16  N.  Y.  125,  69  Am. 
Dec.  678;  Olcott  v.  Railroad  Co.,  27  N.  Y.  546,  560,  84  Am.  Dec. 
298;  Johnson  v.  Stone,  40  N.  H.  197,  201,  75  Am.  Dec.  706;  Gulick 
v.  Grover,  33  N.  J.  Law,  463,  467,  97  Am.  Dec.  728;  Fisher  v. 
Campbell,  9  Port.  (Ala.)  210;  Odiorne  v.  Maxcy,  15  Mass.  39;  Walsh 
v.  Pierce,  12  Vt.  130;  Wheeler  v.  Benton,  67  Minn.  293,  69  N.  W. 
927. 

TIFF.P.&  A.— 3 


34  CREATION   OF  RELATION APPOINTMENT.  (Ch..  2 


AGENCY   BY   ESTOPFEI* 

9*  Where  a  person,  by  words  or  conduct,  represents  or  permits 
it  to  be  represented  that  another  person  is  his  agent, 
he  will  be  estopped  to  deny  the  agency,  as  against  third 
persons  who  have  dealt,  on  the  faith  of  snch  represen- 
tation, with  the  person  so  held  out  as  agent,  even  if 
no  agency  existed  in  fact.* 

It  is  a  general  rule  that  where  a  person,  by  words  or  con- 
duct, causes  another  to  believe  in  the  existence  of  a  certain 
state  of  facts,  and  to  act  upon  that  belief,  he  will  be  estopped, 
as  against  the  other,  to  allege  a  different  state  of  facts. 
Hence,  while  a  person  cannot  become  the  agent  of  an- 
other without  his  consent,  the  other,  if  he  has  represented 
that  an  agency  exists,  may  be  estopped  to  deny  its  exist- 
ence.2 The  representation  may  be  by  words  or  conduct.  To 
raise  an  estoppel  against  the  person  sought  to  be  charged 
as  principal,  it  is  not  necessary  that  the  representation  be 
made  with  the  actual  intention  that  it  be  acted  upon  by  the 
other;  it  is  enough  if,  whatever  the  real  intention,  the  rep- 
resentation be  so  made  that  the  other,  acting  as  a  reasonable 
man,  will  have  cause  to  believe,  and  does  believe,  that  it  is 
meant  to  be  acted  upon,  and  does  act  in  reliance  upon  it.3 

59.    i  Cf .  Bowstead,  Dig.  Ag.  art  8. 

2  Pickard  v.  Sears,  6  Ad.  £  E.  469;  Bronson's  Ex'r  v.  Chappell, 
12  Wall.  (U.  S.)  681,  20  L.  Ed.  436;  Kirk  v.  Hamilton,  102  U.  S. 
68,  26  L.  Ed.  79. 

Where  a  principal  knows  that  a  stranger  is  dealing  with  his 
agent  under  the  belief  that  all  statements  of  the  agent  are  warranted 
by  the  principal,  and  allows  the  stranger  to  expend  money  in  that 
belief,  he  will  not  be  allowed  to  set  up  the  want  of  authority. 
Remsden  v.  Dyson,  L.  R.  1  H.  L.  129. 

a  Freeman  v.  Cook,  2  Ex.  654;  Reynall  v.  Lewis,  15  M.  &  W. 
617;  Carr  v.  London  &  N.  W.  Ry.  Co.,  L.  R.  10  C.  P.  307,  317;  Brad- 
Ish  v.  Belknap,  41  Vt.  172;  Page  v.  Methfessel,  71  Hun,  442,  25 
N.  Y.  Supp.  11;  Sax  v.  Drake,  69  Iowa,  760,  28  N.  W.  423;  Gibson 
v.  Hardware  Co.,  94  Ala.  346,  10  South.  304;  Johnson  v.  Hurley, 
115  Mo.  513,  22  S.  W.  492. 


§  9)  AGENCY  BY   ESTOPPEL.  35 

The  principal  may  even  be  estopped  where  the  representation 
of  authority  is  due  to  his  own  failure  to  observe  reasonable 
care.4  The  other  party  must  act  in  reliance  upon  the  ap- 
parent authority  and  in  good  faith.5  This  apparent  agency, 
which  to  this  extent  is  treated  as  a  real  agency,  has  been 
termed  an  "agency  by  estoppel."6  An  agency  by  estoppel 
may  arise,  not  only  where  no  agency  at  all  exists,  but  where 
an  agent  has  acted  in  excess  of  his  authority ;  for  if  the  prin- 
cipal has  represented  that  his  agent  has  authority  to  perform 
a  particular  act,  he  will  be  equally  estopped  to  deny  the  ex- 
istence of  the  particular  authority.  Independently  of  estop- 
pel, however,  the  principal  may  be  bound  by  the  contracts 
and  representations  of  his  agent  within  the  scope  of  the  au- 
thority usually  confided  to  an  agent  employed  in  the  capacity 
in  which  the  agent  is  employed,  provided  the  person  dealing 

4  Martin  v.  Webb,  110  U.  S.  7,  3  Sup.  Ct.  428,  28  L.  Ed.  49; 
Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  X.  W.  1061;  Quinn  v. 
Dresbach,  75  Cal.  159,  16  Pac.  762,  7  Am.  St  Rep.  138;  Holt  v. 
Schneider,  57  Neb.  523,  77  N.  W.  1086;  Witcher  v.  Gibson,  15-  Colo. 
App.  163,  61  Pac.  192. 

Payment  to  a  person  found  in  a  merchant's  counting  house,  and 
appearing  to  be  intrusted  with  the  business  there,  is  good,  though 
he  be  not  in  the  merchant's  employ.  "The  debtor  has  a  right  to 
suppose  that  the  tradesman  has  the  control  of  his  own  premises, 
and  that  he  will  not  allow  persons  to  come  there  and  intermeddle 
In  his  business  without  his  authority."  Per  Lord  Teuterden,  Bar- 
rett v.  Deere,  Moo.  &  M.  200. 

A  principal  is  not  liable-  for  acts  of  his  agent  outside  the  scope 
of  the  agency,  unless,  with  knowledge  of  such  acts,  he  has  given 
others  reasonable  cause  to  believe  that  the  agent  had  authority  to 
do  such  acts.  Mt.  Morris  Bank  v.  Gorham,  169  Mass.  519,  48  N.  E. 
841. 

o  Crane  v.  Gruenewald,  120  N.  Y.  274,  24  N.  E.  456,  17  Am.  St. 
Rep.  643;  Clark  v.  Dillman,  108  Mich.  625,  66  N.  W.  570;  First 
Nat.  Bank  v.  Bank,  56  Neb.  149,  76  X.  W.  430. 

The  person  relying  on  the  apparent  authority  must  use  reason- 
able diligence  to  ascertain  the  facts.  Ladd  v.  Town  of  Grand  Isle, 
67  Vt.  172,  31  Atl.  34. 

«  Pole  v.  Leask,  33  L.  J.  N.  S.  Ch.  155,  162;   Anson,  Contr.  335. 


36  CREATION   OP  RELATION APPOINTMENT.  (Ctt.  2 

with  the  agent  has  not  notice  that  he  is  exceeding  his  au- 
thority.1 

In  most  cases  of  agency  by  estoppel  the  representation 
is  based  upon  the  conduct  of  the  alleged  principal  in  holding 
out  another  as  his  agent.  And  frequently  the  same  evidence 
which  establishes  a  representation  of  authority  by  conduct 
as  the  basis  of  an  estoppel  is  sufficient  to  establish  an  agency 
by  implied  appointment.  Thus,  as  has  been  shown,8  the  re- 
peated adoption  by  the  principal  of  the  unauthorized  acts  of 
an  agent  is  evidence  of  authority  to  the  agent  to  perform 
other  similar  acts,  and  it  is  open  to  a  person  who  has  dealt 
with  an  agent  to  prove  his  authority  by  such  evidence,  al- 
though he  was  not  aware  of  the  prior  course  of  dealing  be- 
tween principal  and  agent  when  he  so  dealt.  If,  however, 
the  acts  previously  adopted  by  the  principal  were  done  in 
dealings  with  the  person  seeking  to  charge  him,  so  as  to 
amount  to  a  representation  of  authority  made  to  him,  or 
were  so  notorious  as  to  amount  to  a  public  representation 
of  authority,  and  he  has  dealt  with  the  agent  in  reliance  upon 
such  representation,  it  is  immaterial  that  the  principal  may 
be  able  to  overcome  the  implication  of  actual  authority,  since 
an  agency  by  estoppel  has  been  established.9 

Same — Illustrations. 

Most  frequently  an  agency  by  estoppel  is  based  upon  a 
recognition  by  the  principal  of  the  agent's  authority  in  prior 
dealings.10  If  a  man  allows  his  servant  habitually  to  buy 
from  a  tradesman  on  credit,  his  conduct  is  an  implied  rep- 

T  Post,  p.  180.  a  Ante,  p.  38. 

o  Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061;  Brad- 
isb  v.  Belknap,  41  Vt  172. 

10  Trueman  v.  Loder,  11  Ad.  &  B.  589;  Dodsley  v.  Varley,  4 
P.  &  D.  448;  Summers  v.  Solomon,  7  El.  &  B.  879;  Farmers'  & 
Mechanics'  Bank  v.  Bank,  16  N.  Y.  125,  145,  69  Am.  Dec.  678;  Tier 
v.  Lampson,  35  Vt.  179,  82  Am.  Dec.  634;  Pursley  v.  Morrison,  7 
Ind.  356,  63  Am.  Dec.  424;  Columbia  Mill  Co.  v.  Bank,  52  Minn. 
224,  53  N.  W.  1061;  Quinn  v.  Dresbach,  75  Cal.  159,  12  Pac.  762, 
7  Am.  St.  Rep.  138. 


§  9)  AGENCY  BY  ESTOPPEL.  37 

reservation  of  authority  to  pledge  his  credit  in  similar  cases. 
"If  a  tradesman  has  dealt  with  the  wife  upon  credit  of  the 
husband,  and  the  husband  has  paid  him  without  demurrer  in 
respect  to  such  dealings,  the  tradesman  has  the  right  to  as- 
sume, in  the  absence  of  notice  to  the  contrary,  that  the  au- 
thority of  the  wife  which  the  husband  has  recognized  con- 
tinues. The  husband's  quiescence  is  in  such  cases  tanta- 
mount to  acquiescence,  and  forbids  his  denying  an  autnority 
which  his  own  conduct  has  invited  the  tradesman  to  as- 
sume." "  Or  if  a  merchant  is  aware  that  his  cashier  is  in  the 
habit  of  indorsing  and  collecting  checks  without  authority  in 
dealing  with  the  bank,  and  does  not  notify  the  bank  that  the 
cashier  is  acting  without  authority,  he  will  not  be  allowed 
to  deny  the  authority.12  And,  generally,  conduct  which  has 
the  appearance  of  holding  out  another  as  agent  for  any  pur- 
pose is  a  sufficient  representation  of  authority  to  create  an 
estoppel  within  the  scope  of  the  agency  represented  to  ex- 
ist,18 as  where  one  permits  or  acquiesces  in  the  use  of  his 
name  by  another  in  carrying  on  business,14  or  places  another 
upon  his  premises  in  apparent  charge  of  the  business  ordi- 
narily there  conducted,18  or  in  apparent  charge  of  the  busi- 
ness which  it  might  reasonably  be  inferred  would  be  con- 

11  Debenham  v.  Mellon,  5  Q.  B.  D.  394. 

12  Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061. 

i«  Martin  v.  Webb,  110  U.  S.  7,  3  Sup.  Ct.  428,  28  L.  Ed.  49; 
Hooe  v.  Oxley,  1  Wash.  (Va.)  19,  1  Am.  Dec.  425;  Summer ville  v. 
Railroad  Co.,  62  Mo.  391;  Thompson  v.  Clay,  60  Mich.  627,  27  N. 
W.  699;  Hardin  v.  Insurance  Co.,  90  Va.  413,  18  S.  E.  911;  Hill 
v.  Wand,  47  Kan.  340,  27  Pac.  988,  27  Am.  St.  Rep.  288;  Webster 
v.  Wray,  17  Neb.  579,  24  N.  W.  207;  Griggs  v.  Selden,  58  Vt  501,  5 
All.  504. 

"Gilbraith  v.  Lineberger,  69  N.  C.  145;  St  Louis  &  M.  Packet 
Co.  v.  Parker,  59  111.  23  (permitting  another  to  advertise  as  agent). 
Cf.  Pilot  v.  Craze.  52  J.  P.  311. 

is  Barrett  v.  Deere,  Moo.  &  M.  200;  Summers  v.  Solomon,  7  El. 
&  B.  879;  Kent  v.  Tyson,  20  N.  H.  121;  Pennsylvania  R.  Co.  v. 
Atha  (D.  C.)  22  Fed.  920;  Thurber  v.  Anderson,  88  111.  167;  Goss 
v.  Helbing,  77  Gal.  190,  19  Pac.  277. 


38  CREATION  OF  RELATION APPOINTMENT.  (Ch.  2 

ducted  on  the  premises,16  or  stands  by  and  silently  suffers 
another  in  his  presence  to  perform  an  act  or  make  a  con- 
tract in  his  name.17  Where  another  has  once  been  held  out 
as  agent,-  the  principal  will  be  estopped  as  against  one  who 
has  dealt  in  reliance  upon  the  apparent  authority,  notwith- 
standing a  revocation  of  authority  of  which  the  latter  had  no 
notice.18 

As  has  been  pointed  out,19  the  principal  is  bound  when  his 
agent  acts  within  the  scope  of  the  usual  authority  of  an 
agent  employed  to  do  the  business  confided  to  the  agent, 
notwithstanding  undisclosed  limitations  upon  such  authority. 
In  such  case  also  it  is  said,  somewhat  misleadingly,  that  the 
act  of  the  agent  is  within  the  scope  of  his  "apparent"  author- 
ity ;  but  the  elements  of  a  technical  estoppel  may  or  may  not 
exist,  and  the  liability  of  the  principal  arises  independently 
of  their  existence.  In  some  of  the  cases  which  have  been  cit- 
ed 20  under  the  head  of  estoppel,  the  liability  of  the  principal 
might  have  been  made  to  rest  either  upon  estoppel  or  upon 
agency.  The  liability  of,  the  principal  for  the  acts  of  his 
agent  within  the  scope  of  his  apparent  authority,  in  this 
other  sense  in  which  the  term  is  used)  will  be  discussed 
later.21 

«  Johnson  v.  Investment  Co.,  46  Neb.  480,  64  N.  W.  1100;  White 
V.  Leighton,  15  Neb.  424,  19  N.  W.  478. 

IT  Pickard  v.  Sears,  6  Ad.  &  E.  469;  James  v.  Russell,  92  N. 
C.  194;  Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  54  Miss.  200. 

Such  acquiescence  might  also  be  sufficient  evidence  of  implied 
authority  or  of  ratification.  James  v.  Russell,  supra. 

is  Trueman  v.  Loder,  11  Ad.  &  E.  589;  Hatch  v.  Coddington,  95 
U.  S.  48,  24  L.  Ed.  339;  Southern  Life  Ins.  Oo.  v.  McCain,  96  U.  S. 
84,  24  L.  Ed.  653;  Johnson  v.  Christian,  128  U.  S.  374,  9  Sup.  Ct 
87,  32  L.  Ed.  412:  Bodine  v.  Killeen,  53  N.  Y.  93;  Snell  v.  Stone, 
23  Or.  327,  31  Pac.  663;  post,  p.  138. 

"  Ante,  p.  7. 

20  see  White  v.  Leighton,  15  Neb.  424,  10  N.  W.  478. 

*i  Post,  p.  183. 


10)  AGENCY    FROM   NECESSITY.  39 


AGENCY   FROM    NECESSITY. 

1O.  In  certain  legal  relations,  under  circumstances  of  neces- 
sity peculiar  to  the  particular  relation,  the  lair  con- 
fers upon  one  party  thereto  power  to  make  contracts 
which  are  binding  npon  the  other,  without  his  au- 
thority, and  in  some  cases  against  his  will.  Snch  is 
the  power  of  a  wife,  and  in  some  jurisdictions  of  a 
child,  in  case  of  nonsnpport,  to  pledge  the  credit  of 
the  husband  or  father  for  necessaries,  and  the  power 
of  a  railway  servant  in  some  jurisdictions,  in  case 
of  accident  and  emergency,  to  employ  a  surgeon  on 
behalf  of  the  rail-way  company  for  an  injured  em- 
ploye. In  snch  cases  it  is  frequently  said  that  the  law 
creates  an  agency  from  necessity. 

In  General. 

The  term  "agency  from  necessity"  is  sometimes  used  to 
describe  relations  which,  accurately  speaking,  are  not  refer- 
able to  the  law  of  agency.  Such  is  the  relation  between  hus- 
band and  wife,  considered  in  the  next  paragraph,  by  which, 
only  under  particular  circumstances,  the  wife  has  the  power 
to  impose  an  obligation  upon  her  husband,  even  against  his 
will,  in  favor  of  a  third  person.  The  term  "agency  from  ne- 
cessity," as  applied  to  such  a  relation,  is  inaccurate,  because 
the  foundation  of  the  obligation  is  not  to  be  sought  in  any 
principfe  of  agency,  and  it  is  misleading,  because  necessity 
alone  is  never  the  foundation  of  agency.  It  is  true  that  the 
ordinary  powers  of  an  agent  are  sometimes  enlarged  by  the 
occurrence  of  an  emergency  which  justifies  action  that 
would  otherwise  be  a  departure  from  or  in  excess  of  the  au- 
thority conferred;  but  such  extraordinary  authority  is  to 
be  implied  from  the  conduct  of  the  principal  in  creating 
an  agency  in  which  such  an  emergency  may  arise,  and  is 
hence  derived  from  the  will  of  the  principal.1  In  cases  where 
a  so-called  agency  arises,  independently  of  agreement,  by 
operation  of  law,  the  relation  may  be  described  as  agency 

\  10.     i  Post,  p.  41, 


40  CREATION  OF  RELATION APPOINTMENT.       (Ch..  2 

quasi  ex  contractu.2  In  other  words,  the  relation  is  not 
one  of  agency,  which  rests  essentially  upon  agreement,  but 
the  obligation  of  the  so-called  principal  is  enforced  as  if  an 
agreement  actually  existed.  Thus,  in  an  action  against  a 
husband  to  recover  for  necessaries  furnished  to  his  wife  un- 
der the  circumstances  mentioned  in  the  next  paragraph,  the 
form  of  action  is  assumpsit,  and  the  husband's  request,  al- 
though alleged,  need  not  be  proved.* 

Agency  of  Wife. 

A  husband  is  bound  to  maintain  his  wife  and  to  supply 
her  with  necessaries  suitable  to  her  situation  and  his  own 
condition  in  life,  and  if  he  fails  in  this  duty  the  law  gives  her 
the  right  to  pledge  his  credit  for  the  purpose  of  supplying 
herself.4  This  right  to  contract  debts  on  his  credit  is  strict- 
ly limited  to  the  conditions  which  create  it,  and  the  husband 
cannot  be  charged  at  the  suit  of  one  who  has  assumed  to 
deal  with  the  wife  under  such  circumstances  without  proof 
that  the  husband  failed  to  provide  suitable  support,  and  that 
the  articles  furnished  were  necessaries.  But,  if  these  facts 
are  proved,  the  husband's  liability  is  established  notwith- 
standing that  he  may  have  forbidden  his  wife  to  pledge  his 
credit,  or  forbidden  the  other  party  to  deal  with  her.  The 
husband's  obligation  is  thus  one  of  quasi  contract,  and  is 
quite  distinct  from  that  which  arises  when  he  has  expressly 
or  by  implication  conferred  authority  upon  his  wife.6  It  is 
frequently  said  that  under  such  circumstances  the  law  creates 
an  agency  from  necessity,8  or  a  compulsory  agency ; T  but  it 

*  Anson,   Contr.   335.          *  Benjamin  v.  Dockham,  134  Mass.  418. 

*  Johnson  v.  Sumner,  3  H.  &  N.  261;   Mayhew  v.  Thayer,  8  Gray 
(Mass.)   172;    Prescott  v.   Webster,   175   Mass.   316,    56   N.   E.   577; 
Woodward  v.  Barnes,  43  Vt.  330;   Pierpont  v.  Wilson,  49  Conn.  450; 
Keller  v.  Phillips,  39  N.  Y.  351;    Cromwell  v.  Benjamin,  41  Barb. 
(N.  Y.)  558;   Watkins  v.  De  Armond,  89  Ind.  553. 

«  Ante,  p.  16. 

*  Johnson  v.  Sumner,  3  H.  &  N.  261;    Easland  v.  Burchell,  3  Q 
B.  D.  432,  436;    Woodward  v.  Barnes,  43  Vt  330;    East  v.  King, 
77  Miss.  738,  27  South.  608. 

T  Benjamin  v.  Dockham,  134  Mass.  418. 


§  10)  AGENCY  PEOM   NECESSITY.  41 

is  apparent  that  the  real  foundation  of  liability  is  the  dutx 
of  support,  and  the  treatment  of  the  subject  in  detail  belongs 
rather  to  the  law  of  husband  and  wife  than  of  agency.8 

Agency  of  Child. 

It  is  very  generally  held  that  a  father  is  under  no  legal 
obligation  to  support  his  minor  child,  and  where  this  rule 
prevails  the  child  has  no  right  to  pledge  his  father's  credit, 
even  for  necessaries,  without  express  or  implied  authority.9 
But  in  some  states  a  contrary  rule  prevails,  and  where  the 
father  fails  in  his  duty  of  support  the  child  has  a  right,  upon 
his  father's  credit,  to  supply  himself  with  necessaries.10  The 
same  considerations  applicable  to  the  so-called  agency  from 
necessity  between  husband  and  wife  apply  also  to  this  rela- 
tion. 

Agency  of  Shipmaster. 

The  master  of  a  ship  is  invested  with  certain  extraordinary 
powers,  to  be  exercised  only  in  cases  of  extreme  emergency. 
He  may,  for  example,  where  it  is  necessary  for  the  prosecu- 
tion of  the  voyage,  borrow  money  on  the  credit  of  the  ship- 

•  See  Keener,  Quasi  Contr.  22;  Bergh  v.  Warner,  47  Minn.  250, 
252,  50  X.  W.  77,  28  Am.  St.  Rep.  362. 

It  is  also  his  duty  to  bury  his  wife,  and  if  he  neglects  it  he  is 
liable  for  reasonable  funeral  expenses  incurred  by  another.  Cun- 
ningham v.  Reardon,  98  Mass.  538,  96  Am.  Dec.  670;  Gleason  v. 
Warner,  78  Minn.  405,  81  N.  W.  206. 

A  husband  is  liable  for  necessaries  supplied  to  his  wife  while  he 
Is  insane.  Read  v.  Legard,  6  Ex.  636.  Or  while  she  is  unconscious. 
Cunningham  v.  Reardon,  supra,  per  Hoar,  J. 

»  Mortimer  v.  Wright,  6  M.  &  W.  482;  Skelton  v.  Springett,  11 
C.  B.  452;  Gordon  v.  Potter,  17  Vt.  348;  Kelley  v.  Davis,  49  N. 
H.  187.  6  Am.  Rep.  499;  Van  Valkinburgh  v.  Watson,  13  Johns. 
(N.  Y.)  480,  7  Am.  Dec.  395;  Freeman  v.  Robiuson,  38  N.  J.  Law. 
383,  20  Am.  Rep.  399;  McMillen  v.  Lee,  78  111.  443;  Rogers  v. 
Turner,  59  Mo.  116;  Carney  v.  Barrett,  4  Or.  171. 

loGilley  v.  Gilley,  79  Me.  292,  9  Atl.  623,  1  Am.  St.  Rep.  307; 
Cromwell  v.  Benjamin,  41  Barb.  (N.  Y.)  558;  Stanton  v.  Willson,  3 
Day  (Conn.)  37,  3  Am.  Dec.  255;  Watkins  \.  De  Armoud,  89 
553;  Dennis  v.  Clark,  2  Gush.  (Mass.)  347,  352,  48  Am.  Dec.  671. 


42  CREATION  OF  RELATION APPOINTMENT.  (Ch.  2 

owner,11  or  hypothecate  the  ship  or  cargo,12  or  sell  part  of 
the  cargo,13  and  he  may,  in  case  of  absolute  necessity,  sell 
both  ship  and  cargo.14  To  justify  such  action  the  necessity 
must  be  established,  and  it  must  appear  that  it  was  imprac- 
ticable to  communicate  with  the  respective  owners.  Ordi- 
narily the  authority  of  the  master  over  the  cargo  is  limited  to 
transportation  and  preservation.  "But  he  may,"  says  Story, 
"under  circumstances  of  great  emergency,  acquire  a  superin- 
duced authority  to  dispose  of  it,  from  the  very  nature  and  ne- 
cessity of  the  case.  *  *  *  The  character  of  agent  and  su- 
percargo is  forced  upon  him,  not  by  the  immediate  act 
and  appointment  of  the  owner,  but  by  the  general  policy  of 
the  law."  1B  In  view  of  the  likelihood  of  the  occurrence  of 
emergencies  in  the  course  of  a  voyage,  when  communication 
is  impossible,  it  would  seem  not  unreasonable  to  imply  from 
the  conduct  of  the  owners,  even  of  the  cargo,  in  committing 
their  property  to  the  care  of  the  shipmaster,  authority  to  act 
as  the  necessities  of  the  case  may  require  with  regard  to  the 
interest  of  all  concerned,  and  thus  to  rest  the  authority  of  the 
agent  upon  the  implied  appointment  of  the  principal.16  But, 

11  Rocker  v.  Busher,  1  Stark.  27;   Johns  v.  Simmons,  2  Q.  B.  425; 
Arthur  v.  Barton,  6  M.  &  W.  138;    Beldon  v.  Campbell,  6  Ex.  886; 
McCready  v.  Thorn,  51  N.  Y.  454;   Stearns  v.  Doe,  12  Gray    (Mass.) 
482,  74  Am.  Dec.  608. 

12  The  Gratitudine,  3  Rob.  Adm.  240;   The  Hamburgh,  Br.  &  Lush. 
253;    Kleinwork  v.  Casa  Marrittima  Genoa,  2  App.  Gas.  156;    The 
Packet,  3  Mason  (U.  S.)  255,  Fed.  Gas.  No.  10,654;   Pratt  v.  Reed,  19 
How.  (U.  S.)  359,  361,  15  L.  Ed.  660;  United  Ins.  Co.  v.  Scott,  1  Johns. 
(N.  Y.)  106. 

is  The  Gratitudine,  3  Rob.  Adm.  240;  Australian  Steam  Nav.  Co.  v. 
Morse.  L.  R.  4  P.  C.  222;  Hunter  v.  Parker,  7  M.  &  W.  322;  The 
Australia,  Swab.  480;  Jordan  v.  Insurance  Co.,  1  Story  (U.  S.)  342, 
Fed.  Cas.  No.  7,524;  Pope  v.  Nickerson,  3  Story  (U.  S.)  465,  Fed.  Oas. 
No.  11,274;  Gordon  v.  Insurance  Co.,  2  Pick.  (Mass.)  249;  Pike  v. 
Balch,  38  Me.  302,  61  Am.  Dec.  248.  See  Abbott,  Ship.  367,  368. 

i«  Story,  Ag.  §  118.  is  Story,  Ag.  §  118. 

18  "The  character  of  agent  of  the  owners  of  the  cargo  is  imposed 
upon  the  master  by  the  necessity  of  the  case,  and  by  that  alone. 
In  the  circumstances  supposed  something  must  be  done,  and  there 


§  10)  AGENCY   FROM   NECESSITY.  48 

whatever  the  source  from  which  the  extraordinary  authority 
of  the  shipmaster  is  derived,  it  is  peculiar  to  the  character 
of  his  office,  and  affords  no  precedent  in  ordinary  cases  of 
agency.17 

Agency  of  Railway  Servant  to  Employ  Surgeon. 

An  anomalous  doctrine  has  in  recent  years  become  estab- 
lished in  some  jurisdictions,  by  which  railway  conductors, 
station  agents,  and  other  railway  servants  are  deemed  to  be 
vested  with  authority  in  cases  of  accident  to  employ,  on  be- 
half of  the  railway  company,  surgeons  and  physicians,  when 
their  services  are  necessary  to  prevent  resulting  loss  of 
life  or  great  bodily  harm  to  injured  employes.18  This  au- 
thority is  held  to  be  independent  of  express  or  implied  ap- 
pointment, and  to  be  conferred  by  law,  by  reason  of  the 
pressing  necessity,  upon  the  highest  railway  official  present 

Is  nobody  present  who  has  authority  to  decide  what  is  to  be  done. 
The  master  is  invested  by  presumption  of  law  with  authority  to  give 
directions  on  this  ground  that  the  owners  have  no  means  of  ex- 
pressing their  wishes.  But  when  such  means  exist,  when  com- 
munication can  be  made  to  the  owners,  and  they  can  give  their  own 
orders,  the  character  of  agent  is  not  imposed  upon  the  master,  be- 
cause the  necessity  does  not  arise."  The  Hamburgh,  Br.  &  Luch. 
253. 

IT  Hawtayne  v.  Bourne,  7  M.  &  W.  595. 

is  Terre  Haute  &  I.  R.  Co.  v.  McMurray,  98  Ind.  358,  49  Am. 
Rep.  752;  Evansville  &  R.  R.  Co.  v.  Freeland,  4  Ind.  ^pp.  207, 
30  N.  B.  803;  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Mylott,  6  Ind.  App. 
438,  33  N.  E.  135  (lodging  and  care);  Arkansas  S.  R.  Co.  v.  Lough- 
ridge,  65  Ark.  907,  45  S.  W.  907.  See,  also,  Cincinnati,  I.,  St.  L. 
&  C.  R.  Co.  v.  Davis,  126  Ind.  99,  25  N.  E.  878,  9  L.  R.  A.  503,  44 
Am.  &  Eng.  R.  Gas.  461,  note  (collecting  cases);  Atlantic  &  P.  R, 
Co.  v.  Reisner.  18  Kan.  458;  Atchison  &  N.  R.  Co.  v.  Reecher,  24 
Kan.  228;  Bigham  v.  Railway  Co.,  79  Iowa,  534,  44  N.  W.  805. 

Contra:  Marquette  &  O.  R.  Co.  v.  Taft,  28  Mich.  289  (divided 
court);  Tucker  v.  Railway  Co.,  54  Mo.  177;  Brown  v.  Railway  Co., 
67  Mo.  122;  Mayberry  v.  Railroad  Co.,  75  Mo.  492. 

See,  also,  Stephenson  v.  Railroad  Co.,  2  Duer  (N.  Y.)  341;  Cooper 
v.  Railroad  Co.,  6  Hun  (N.  Y.)  276;  Sevier  v.  Railroad  Co.,  92  Ala. 
258,  9  South.  405. 


44k  CREATION  OF  RELATION APPOINTMENT.  (Ch.  2 

when  the  necessity  arises.  The  authority  is  limited  to  the 
necessity,  and  terminates  when  the  emergency  has  passed.19 
The  reason  given  for  the  rule  is  the  absence  and  consequent 
inability  to  act  of  some  one  of  the  company's  agents  author- 
ized to  make  such  contracts  for  the  company,20  but  the  rule 
presupposes  the  existence  of  a  duty  resting  upon  the  com- 
pany to  care  for  injured  employes  under  such  circumstan- 
ces.21 The  foundation  of  such  a  duty  must  be  sought  in 
public  policy,  in  view  of  the  frequent  occurrence  of  railway 
accidents  at  places  where  no  one  who  is  under  any  obliga- 
tion to  care  for  the  injured  employe,  unless  it  be  the  em- 
ployes of  the  company,  is  likely  to  be  present.  "We  think  it 
is  their  [the  company's]  duty,"  said  Judge  Cooley,22  "to  have 
some  officer  or  agent,  at  all  times,  competent  to  exercise  a 
discretionary  authority  in  such  cases,  and  that,  on  grounds 
of  public  policy,  they  should  not  be  suffered  to  do  other- 
wise." 

This  duty  to  care  for  an  injured  employe  is  analogous  to 
that  of  the  husband  to  supply  his  wife  with  necessaries,  and 

i»Terre  Haute  &  I.  R.  Co.  v.  Brown,  107  Ind.  336,  8  N.  E.  218; 
Louisville,  N.  A.  &  0.  R.  Co.  v.  Smith,  121  Ind.  353,  22  N.  E.  775, 
6  L.  R.  A.  320;  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Hoover,  53  Ark.  377, 
13  S.  W.  1092;  Sevier  v.  Railroad  Co.,  92  Ala.  258,  9  South.  405. 

20  A  general  manager  has,  as  incidental  to  his  employment,  au- 
thority to  bind  the  company  in  such  cases.    Walker  v.  Great  West- 
ern  Ry.   Co.,   L.   R.   2   Ex.   228.     His   ratification   of  the   assumed 
agency  of  a  subordinate  in  such  cases  binds  the  company.     Toledo, 
W.  &  W.  R.  Co.  v.  Rodrigues,  47  111.  188,  95  Am.  Dec.  484;    In- 
dianapolis &  St.  L.  R.  Co.  v.  Morris,  67  111.  295;    Cairo  &  St  L. 
R.  Co.  v.  Mahoney,  82  111.  73,  25  Am.  Rep.  299. 

The  authority  of  the  company's  "police  inspector"  to  care  for 
injured  passengers  under  the  evidence  held  a  question  for  the 
jury.  Langan  v.  Great  Western  Ry.  Co.,  32  L.  T.  N.  S.  173  (criticis- 
ing Cox  v.  Ry.  Co.,  3  Ex.  268).  See,  also,  Hanscom  v.  Railway  Co., 
53  Minn.  119,  54  N.  W.  944,  20  L.  R.  A.  695. 

21  The  duty  does  not  extend  to  the  care  of  passengers.    Union  Pac. 
Ry.  Co.  v.  Beatty,  35  Kan.  268,  10  Pac.  845,  57  Am,  Rep.  160.     Or 
trespassers.    Adams  v.  Railway  Co.,  125  N.  C.  565,  34  S.  E.  642. 

22  Dissenting,  in  Marquette  &  O.  R.  Co.  v.  Taft,  28  Mich.  289. 


§  10)  AGENCY  FROM   NECESSITY.  45 

logically  the  so-called  agency,  resting  upon  a  quasi  con- 
tractual obligation,  would  be  imposed  upon  the  company  not- 
withstanding its  express  prohibition  to  its  agents  to  per- 
form the  duty.  Indeed,  if  the  duty  rests  upon  the  company, 
it  is  difficult  to  escape  from  the  conclusion  that  it  would  be 
liable  to  a  surgeon  or  physician  for  services  rendered  to  an 
injured  employe,  provided  the  necessity  were  established, 
even  without  the  intervention  of  the  so-called  agent.  Wheth- 
er the  doctrine  is  to  be  extended  to  other  dangerous  employ- 
ments is  apparently  still  an  open  question.28 

*s  Chaplin  v.  Freeland,  7  Ind.  App.  676,  34  N.  B.  1007;    Holmes 
v.  McAllister,  123  Mich.  493,  82  N.  W.  220,  48  L.  R.  A.  396. 


46  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 


CHAPTER  HI. 

CREATION  OF  RELATION  OF  PRINCIPAL  AND  AGENT  (CON- 
TINUED)—RATIFICATION. 

11.  Agency  by  Ratification. 

12.  What  Acts  may  be  Ratified. 

13.  Ratification  of  Forgery. 

14.  Conditions  of  Performance  of  Act. 

15.  Who  may  Ratify. 

16.  How  an  Act  may  be  Ratified. 

17.  Knowledge  of  Facts. 

18.  Effect  of  Ratification. 


AGENCY  BY  RATIFICATION. 

11.  The  relation  of  principal  and  agent  is  created  by  ratifica- 
tion when  one  person  adopts  an  act  done  by  another 
person,  assuming  to  act  on  his  behalf,  but  without 
authority  or  in  excess  of  authority,  with  the  same 
force  and  effect  (subject  to  the  exceptions  hereafter 
stated)  as  if  the  relation  had  been  created  by  appoint- 
ment. 

An  act  done  by  one  person  on  behalf  of  another,  even 
though  in  the  other's  name,  is  not  his  act,  unless  done  with 
his  assent.  Under  the  doctrine  of  ratification,  however, 
the  assent  may  be  given  after  as  well  as  before  the  act, 
the  person  on  whose  behalf  the  act  was  done  having  the 
right  to  adopt  it  as  his  own,  with  its  benefits  and  bur- 
dens, if  he  sees  fit.  Ratification,  it  is  said,  relates  back, 
and  is  equivalent  to  previous  authority.  Omnis  ratihabitio 
retro  trahitur  et  mandate  aequiparatur.1  This  is,  of  course, 
a  statement,  and  not  an  explanation,  of  the  doctrine  of  ratifi- 
cation, which,  observes  Judge  Holmes,  "like  the  rest  of  the 


§  11.    »  Co.  Litt.  207a.    Cf.  Y.  B.  30  Ed.  1  (Rolls'  Series)  126; 
ton  de  Leg.  f,  171b.     As  to  the  origin  of  the  maxim,  see  Story,  Ag. 
I  239;   5  Harv.  Law  Rev.  11;   Wambaugh,  Cas.  Ag.  986. 


§  11)  AGENCY  BY   RATIFICATION.  47 

law  of  agency  reposes  on  a  fiction."  2  It  is  not  confined  to 
the  relation  of  principal  and  agent,  for  one  may  ratify  the  act 
of  one  who  has  assumed  to  act  as  his  servant,  and  thus  be- 
come liable  for  a  trespass,  or  render  lawful  ab  initio  an  act 
which,  but  for  the  ratification  of  the  person  able  to  justify 
it,  would  be  a  trespass.8  The  creation  of  an  agency  by  rati- 
fication has  been  likened  to  the  formation  of  a  contract  by 
acceptance  of  an  offer  of  an  act  for  a  promise,*  but  it  may 
be  doubted  whether  the  analogy  is  not  misleading,  and  it  is 
better  to  disregard  the  language  of  contract,  and  to  say  sim- 
ply that  the  proposed  or  quasi  principal  has  an  election  to 
treat  the  act  as  his  own  or  not.6  It  must  be  borne  in  mind 
that  the  doctrine  of  ratification  applies  equally  to  acts  of 
strangers  who  have  acted  without  any  authority  whatever 
and  to  acts  of  agents  who  in  the  performance  of  particular 
acts  have  exceeded  their  authority. 

2  5  Harv.  Law  Rev.  14. 

» Lewis  v.  Read,  13  M.  &  W.  834;  Bird  v.  Brown,  4  Ex.  786, 
per  Rolfe,  B.;  Dempsey  v.  Chambers,  154  Mass.  330,  28  N.  E.  279, 
13  L.  R.  A.  219,  26  Am.  St.  Rep.  249;  Nims  v.  Boys'  School,  160 
Mass.  177,  35  N.  E.  776,  22  L.  R.  A.  364,  39  Am.  St  Rep.  467; 
Jaggard,  Torts,  46. 

4  Anson,  Contr.  333. 

sDrakeley  v.  Gregg,  8  Wall.  (U.  S.)  242,  267,  19  L.  Ed.  409; 
Metcalf  v.  Williams,  144  Mass.  452,  11  N.  E.  700;  Shoninger  v. 
Peabody,  57  Conn.  42,  17  Atl.  278,  14  Am.  St.  Rep.  88;  Story,  Ag. 
{  248. 

"It  was  nothing  to  do  with  estoppel,  but  the  desire  to  reduce  the 
law  to  general  principles  has  led  some  courts  to  cut  it  down  to 
that  point."  O.  W.  Holmes,  Jr.,  5  Harv.  Law  Rev.  19. 

Where  a  contract  is  ratified,  no  new  consideration  is  required. 
Drakeley  v.  Gregg,  supra;  Grant  v.  Beard,  50  N.  H.  129;  Pearsoll 
v.  Chapin.  44  Pa.  9;  Lynch  v.  Smyth,  25  Colo.  103,  54  Pac.  634. 


48  CREATION   OF  RELATION RATIFICATION.  (Ch.  3 


WHAT   ACTS    MAY   BE   RATIFIED. 

12.  Every  act,  lawful  or  unlawful,  done  by  one  person  on 
behalf  of  another,  without  prior  authority,  which  is 
of  such  a  nature  that  if  done  pursuant  to  prior  au- 
thority it  would  in  law  be  his  act,  is  capable  of  rat- 
ification by  the  person  on  whose  behalf  it  is  done.1 

RATIFICATION  OF  FORGERY. 

13  Whether  a  forged  instrument  may  be  ratified  by  the  per- 

son whose  name  is  forged  is  a  question  upon  which  the 
authorities  differ. 

As  a  rule  every  act,  lawful  or  unlawful,  which  is  done  on 
behalf  of  another  without  his  authority,  may  be  ratified,  and 
when  ratified  is  deemed  to  be  his  act,  with  all  the  burdens 
and  benefits  which  would  have  resulted  had  he  previously  au- 
thorized it.  Inasmuch  as  a  man  is  liable  for  a  tort,  as  well 
as  upon  a  contract,  if  he  has  authorized  it,  he  is  liable  if  he 
ratifies  it.2  On  the  other  hand,  it  may  be  that  an  act  would 
be  destitute  of  legal  effect,  or  void,  although  performed 
by  an  authorized  agent,  and  such  an  act  can,  of  course,  de- 
rive no  force  from  ratification.  Thus  certain  acts  may  not 
be  done  by  an  agent,  and  these,  since  they  may  not  be 
delegated,  may  not  be  ratified.8  Again,  certain  classes  of 
contracts,  termed  illegal  contracts,  the  law  prohibits,  and 

§§  12-13.     i  This  section  must  be  read  in  connection  with  section 

14  (Conditions  of  Performance  of  Act)   and  section   18  (Effect  of 
Ratification). 

2  Hillberry  v.  Hatton,  2  H.  &  0.  822;  Eastern  Counties  Ry.  Co.  v. 
Brown,  6  Ex.  314;  Dempsey  v.  Chambers,  154  Mass.  330,  28  N.  E. 
279,  13  L.  R.  A.  219,  26  Am.  St.  Rep.  249. 

Accepting  goods  wrongfully  seized  with  knowledge  of  facts  held 
ratification  of  assault  committed  while  making  seizure.  Avakian 
v.  Noble,  121  Cal.  216,  53  Pac.  559. 

Accepting  proceeds  of  wrongful  sale  of  goods  stored  In  prin- 
cipal's warehouse  rendered  him  liable  for  conversion.  Cresou  v. 
Ward,  66  Ark.  209,  49  S.  W.  827. 

»  Post,   p.   58. 


§§  12-13)  WHAT  ACTS  MAT   BE   RATIFIED.  49 

pronounces  void,4  and  these,  since  they  would  be  desti- 
tute of  legal  effect  by  whomsoever  entered  into,  are  not 
the  less  so  if  made  by  an  agent  who  derives  his  author- 
ity from  ratification.5  Thus,  in  a  jurisdiction  where  a  stat- 
ute prohibited  contracts  for  the  sale  of  intoxicating  liq- 
uor, such  a  contract  would  be  void,  whether  made  by  the 
seller  or  by  an  agent,  however  his  authority  might  be  con- 
ferred. So  where  a  statute  declares  void  contracts  made  in 
behalf  of  municipal  bodies  in  violation  of  provisions  regu- 
lating the  manner  of  letting,  ratification  is  unavailing  to  val- 
idate a  contract  attempted  so  to  be  made.8  Acts  which  are 
void  cannot  be  ratified,  but  acts  which  are  voidable  may  be.7 
It  follows  that  a  contract  void  for  illegality  cannot  be  ratified, 
although  at  the  time  of  ratification  the  act  creating  the  ille- 
gality has  been  repealed.8  So,  too,  it  would  seem,  in  the  case 

*  Post,  p.  90. 

e  United  States  v.  Grossmayer,  9  Wall.  (U.  S.)  72,  19  L.  Ed.  627; 
Harrison  v  McHenry,  9  Ga.  164,  52  Am.  Dec.  435;  Decuir  v.  Le- 
jeune,  15  La.  Ann.  569;  Spence  v.  Cotton  Mills,  115  N.  C.  210,  20 
S.  E.  372. 

Where  a  statute  prohibited  any  officer  of  any  corporation  from 
being  interested  in  any  contract  for  furnishing  supplies  to  it,  an 
ordinance  for  supply  of  water  to  a  municipality  by  a  company  of 
which  a  majority  of  the  councilmen  were  directors  was  void,  and 
could  not  be  ratified  by  a  council  none  of  whose  members  was  a 
member  of  the  company.  Borough  of  Milford  v.  Water  Co.,  124 
Pa.  610,  17  Atl.  185,  3  L.  R.  A.  122. 

«  Zottman  v.  City  of  San  Francisco,  20  Cal.  96,  81  Am.  Dec.  96; 
Jefferson  County  Sup'rs  v.  Arrighi,  54  Miss.  668. 

7  State  v.  Butties'  Ex'r,  3  Ohio  St.  309;  State  v.  Torinus,  26  Minn. 
1,  49  N.  W.  259,  37  Am.  Rep.  395;  State  v.  Shaw,  28  Iowa,  67; 
City  of  Findlay  v.  Pertz,  13  C.  C.  A.  559,  66  Fed.  427. 

*  A  contract  with  a  corporation,  which  was  void  because  not  in 
writing,  or  sealed  or  signed  by  the  corporate  officers,  as  required 
by   statute,    could   not   be   ratified,    though   the    statute   had   been 
repealed.    Spence  v.  Cotton  Mills,  115  N.  C.  210,  20  S.  E.  372. 

Conversely,  it  would  seem  that  a  contract  which  was  legal  when 
made  by  the  assumed  agent  might  be  ratified  notwithstanding  a 
change  in  the  law  making  such  contracts  illegal.  But  see  Huffcut, 
Ag.  §  43. 

TIFF.P.&  A.— 4 


60  CRKATION  OP  RELATION — RATIFICATION.  (Ch.  3 

of  a  contract  made  by  an  assumed  agent  in  one  jurisdiction 
and  ratified  in  another,  the -legality  of  the  contract,  and  con- 
sequently its  capability  of  ratification,  depend  upon  the  law 
of  the  former  jurisdiction;  but  the  decisions  are  conflicting.9 
To  the  general  rule  that  whatever  acts  may  be  author- 
ized may  be  ratified  with  like  effect,  certain  exceptions,  grow- 
ing out  of  the  peculiar  nature  of  ratification,  must  be  noted. 
In  cases  involving  the  rights  of  strangers  which  have  accrued 
between  the  act  and  the  ratification,  and  in  some  cases  in- 
volving the  liabilities  of  third  persons  with  whom  the  quasi 
agent  has  dealt,  a  strict  application  of  the  doctrine  of  relation 
would  lead  to  unjust  consequences,  and  in  such  cases  ratifi- 
cation is  denied  the  full  effect  of  prior  authority.  These  ex- 
ceptions will  be  dealt  with  in  treating  of  the  effect  of  ratifica- 
tion.10 

Ratification  of  Forgery. 

Whether  a  forged  instrument  is  capable  of  being  ratified 
by  the  person  whose  name  is  forged,  so  as  to  render  him 
liable  upon  it,  is  a  question  upon  which  the  courts  are  di- 
vided.11 The  arguments  against  ratification  are  twofold — 
the  first  founded  upon  the  circumstance  that  the  forger  does 
not  assume  to  act  as  agent ;  the  second  founded  upon  public 
policy. 

•  Dord  v.  Bonnaffee,  6  La.  Ann.  563,  54  Am.  Dec.  573;  Golson 
v.  Ebert,  52  Mo.  260  (statute  of  frauds). 

"In  case  of  a  contract  made  in  a  foreign  country,  by  an  agent 
without  authority,  which  the  principal  at  home  afterwards  ratifies, 
the  contract  is  considered  as  made  in  that  foreign  country,  because 
the  ratification  relates  back  tempore  et  loco,  and  is  equivalent  to 
an  original  authority."  Eustis,  C.  J.,  Dord  v.  Bonnaffee,  supra; 
W  barton,  Ag.  §  83.  Contra,  Shuenfeldt  v.  Junkermann  (0.  C.)  20 
Fed.  357. 

10  Post,  p.  75. 

11  Against  ratification:     Brook  v.  Hook,  L.  R.  6  Ex.  89;   McHugh 
T.  Schuylkill  Co.,  67  Pa.  391,  5  Am.  Rep.  445;    Shisler  v.  Vandike, 
92  Pa.  449,  37  Am.  Rep.   702;    Henry  Christian  Building  &  Loan 
Ass'n  v.  Walton,   181  Pa.  201,  37  AtJ.  261,  59  Am.  St.  Rep.  636; 
Workman  v.  Wright,  33  Ohio  St.  405,  31  Am.  Rep.  546;    Henry  v. 


§§  12-13)  RATIFICATION   OP  FORGERY.  61 

As  we  shall  see,1*  it  is  a  rule  that  an  act,  to  be  capable 
of  ratification,  must  be  done  professedly  on  behalf  of  the 
quasi  principal,  by  one  who  assumes  to  act  as  his  agent, 
while  in  the  case  of  forgery  the  forger  does  not  profess  to 
sign  for  the  other,  but,  in  effect,  represents  the  signature 
to  have  been  made  by  the  person  whose  signature  it  pur- 
ports to  be.18  In  answer  to  this  objection  it  is  suggest- 
ed that  although,  as  a  rule,  a  man  may  not  ratify  an  act  un- 
less it  purports  to  have  been'  done  on  his  behalf  by  one  who 

Heeb,  114  Ind.  275,  16  N.  E.  606,  5  Am.  St.  Rep.  613;  Owsley  y. 
Phillips,  78  Ky.  517,  39  Am.  Rep.  258;  Kelchner  v.  Morris,  75  Mo. 
App.  588. 

In  favor  of  ratification:  Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.) 
447;  Wellington  v.  Jackson,  121  Mass.  157;  Casco  Bank  v.  Keene, 
53  Me.  103;  Howard  r.  Duncan,  3  Lans.  175;  Livings  v.  Wiler, 
32  111.  387;  Hefner  v.  Vandolah,  62  111.  483,  14  Am.  Rep.  106; 
Mechem,  Ag.  §  116;  Wharton,  Ag.  §  71.  See,  also,  Mackenzie  v. 
British  Linen  Co.,  6  App.  Cas.  82,  per  Lord  Blackburn. 

The  act  of  one  who  obtained  payment  by  falsely  representing 
himself  as  agent  of  the  creditor  might  be  ratified,  though  the 
act  was  a  crime.  Scott  v.  New  Brunswick  Bank,  23  Can.  Sup. 
Ct.  277. 

A  fraudulent  alteration  of  a  promissory  note  cannot  be  ratified 
BO  as  to  create  liability  in  favor  of  the  holder  who  made  the  altera- 
tion. Wilson  v.  Hayes,  40  Minn.  531,  42  N.  W.  467,  4  L,  R.  A. 
196,  12  Am.  St  Rep.  754. 

12  Post,  p.  64. 

i»  "In  all  the  cases  cited  for  the  plaintiff,  the  act  ratified  was  an 
act  pretended  to  have  been  done  for  or  under  the  authority  of  the 
party  sought  to  be  charged;  and  such  would  have  been  the  case 
here,  if  Jones  had  pretended  to  have  had  the  authority  of  the 
defendant  to  put  his  name  to  the  note,  and  that  he  had  signed  the 
note  for  the  defendant  accordingly,  and  had  thus  Induced  the  de- 
fendant to  take  it.  In  that  case,  although  there  had  been  no  pre- 
vious authority,  it  would  have  been  competent  to  the  defendant 
to  ratify  the  act.  *  *  *  But  here  Jones  had  forged  the  name 
of  the  defendant  to  the  note,  and  pretended  that  the  signature  was 
the  defendant's  signature;  and  there  is  no  instance  to  be  found  in 
the  books  of  such  an  act  being  held  to  have  been  ratified  by  a 
subsequent  recognition  or  statement."  Brook  v.  Hook,  6  Ex.  89, 
per  Kelly,  0.  B. 


52  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

assumes  to  act  as  his  agent,  the  principle  upon  which  the  rule 
rests  is  simply  that  a  man  may  not  ratify  an  act  which  did 
not  purport  to  be  his  act  or  done  on  his  behalf.  Ordinarily, 
where  one  man  acts  for  another,  he  must  act  for  him  pro- 
fessedly, or  else  the  act  will  purport  to  be  his  own  act,  and 
not  the  act  of  him  for  whom  he  is  secretly  acting.  But, 
from  the  very  nature  of  forgery,  the  act  upon  its  face  pur- 
ports to  be  the  act  of  the  person  whose  name  is  forged,  and 
this,  it  seems,  is  a  sufficient  basis  for  his  adoption  of  the  act. 
Thus,  if  a  clerk,  without  authority,  but  in  the  honest  belief 
that  he  had  authority,  should  sign  his  employer's  name  to  a 
check,  and  issue  it,  without  disclosing  the  fact  that  the  signa- 
ture was  not  made  by  his  employer,  it  can  hardly  be  doubted 
that  the  employer  could  ratify  it,  although  the  assumption  of 
agency  did  not  appear.  It  is  submitted  that  the  mere  undis- 
closed intent  of  the  person  who  makes  the  signature,  al- 
though it  may  make  him  guilty  of  forgery,  is  not  a  difference 
which  should  distinguish  the  case  of  forgery  from  the  case 
last  supposed,  or  which  should  preclude  the  person  whose 
signature  is  forged  from  ratifying  it,  unless,  indeed,  he  is 
precluded  on  the  ground  of  public  policy.14 

i*  "As  to  this  objection,  It  Is  clear  that  It  cannot  be  maintained 
upon  the  ground  of  the  form  of  the  signatures  merely.  This  form 
of  signature,  though  not  the  more  usual  manner  of  signing  by  an 
agent,  does  not  prevent  the  person  whose  name  is  placed  on  the  note 
from  being  legally  holden,  upon  proof  that  the  signature  was 
previously  authorized,  or  subsequently  adopted.  Various  similar 
cases  will  be  found,  where  the  party  has  been  charged,  where  the 
name  of  the  principal  appears  upon  the  note  accompanied  with  no 
indications  of  the  fact  of  its  having  been  signed  by  another  hand. 
*  *  *  Wherever  such  signature  by  the  hand  of  another  was  duly 
authorized,  and  also  where  a  note  was  thus  executed  under  an 
honest  belief  by  the  party  signing  the  name  that  he  was  thus 
authorized,  we  apprehend  that  there  can  be  no  doubt  that  it 
would  be  competent,  in  the  case  first  stated,  to  maintain  an  action 
upon  the  same,  upon  proof  of  the  previous  authority  thus  to  sign 
the  name,  or  in  the  latter  upon  proving  that  the  signature,  although 
at  the  time  unauthorized,  was  subsequently  adopted  and  ratified  by 
the  party  whose  name  appears  as  promisor.  *  •  *  The  only 


§§  12-13)  RATIFICATION   OF  FORGERY.  63 

The  argument  from  public  policy  is  based  upon  the  view 
that  ratification  of  forgery,  if  it  be  sanctioned,  has  a  tend- 
ency to  stifle  prosecution  for  the  criminal  offense.  This 
tendency  cannot  be  denied,16  but  it  may  well  be  doubted 
whether  this  consideration  should  prevail  to  defeat  the  or- 
dinary operation  of  ratification,  at  least  where  the  ratifica- 
tion is  not  upon  the  understanding  that  the  guilty  party  shall 
not  be  prosecuted.18  Of  course,  ratification  could  under  no 
circumstances  afford  a  defense  to  the  forgery  against  an  in- 
dictment.17 

question  upon  this  part  of  the  case  is  whether  a  signature  made 
by  an  unauthorized  person  under  such  circumstances  as  to  show 
that  the  party  placing  the  name  on  the  note  was  thereby  commit- 
ting the  crime  of  forgery  can  be  adopted  and  ratified.  *  *  *  As 
to  the  person  whose  name  is  so  signed,  It  is  difficult  to  perceive  any 
sound  reason  for  the  proposed  distinction.  *  *  *  In  the  first 
case,  the  actor  has  no  authority  any  more  than  in  the  last.  The  con- 
tract receives  its  whole  validity  from  the  ratification.  It  may  be 
ratified  where  there  was  no  pretense  of  agency.  In  the  other  case, 
the  individual  who  presents  the  note  thus  signed  passes  the  same 
as  a  note  signed  by  the  promisor,  either  by  his  own  hand,  or 
written  by  some  one  by  his  authority.  It  was  clearly  competent. 
If  duly  authorized,  thus  to  sign  the  note.  It  is,  it  seems  to  us, 
equally  competent  for  the  party,  he  knowing  all  the  circumstances 
as  to  the  signature  and  intending  to  adopt  the  note,  to  ratify  the 
same,  and  thus  confirm  what  was  originally  an  unauthorized  and 
Illegal  act."  Greenfield  Bank  T.  Crafts,  4  Allen  (Mass.)  447,  per 
Dewey,  J. 

16  "it  Is  impossible  In  such  a  case  to  attribute  any  motive  to 
the  ratifying  party  but  that  of  concealing  the  crime  and  suppressing 
the  prosecution."  Henry  v.  Heeb,  114  Ind.  275,  16  N.  K  600,  5  Am. 
St.  Rep.  613. 

i«  "It  is,  however,  urged  that  public  policy  forbids  sanctioning  a 
ratification  of  a  forged  instrument,  as  it  may  have  a  tendency  to 
stifle  a  prosecution  for  the  criminal  offense.  It  would  seem,  how- 
ever, that  this  must  stand  upon  the  general  principles  applicable  to 
other  contracts,  and  Is  only  to  be  defeated  where  the  agreement  was 
upon  the  understanding  that  if  the  signature  was  adopted  the  guilty 
party  was  not  to  be  prosecuted  on  the  criminal  offense."  Green- 
field Bank  v.  Crafts,  4  Allen  (Mass.)  447. 

IT  "i   wish   to  guard   against   being  supposed   to   say   that   If  a 


64  CREATION  OP  RELATION RATIFICATION.  (Cfa.  3 

Ratification  is  not  to  be  confounded  with  estoppel.  There 
is  universal  agreement  that,  where  a  person  whose  signature 
has  been  forged  expressly  or  impliedly  represents  that  it  is 
genuine,  he  is  estopped,  as  against  one  who  has  changed  his 
position  for  the  worse,  as  by  giving  value  for  a  negotiable 
instrument,  in  reliance  upon  the  representation,  from  deny- 
ing its  genuineness.18 

CONDITIONS  OF  PERFORMANCE  OF  ACT. 

14.  In  order  to  be  capable  of  ratification,  an  act  must  be 
done  by  one  who  assumes  to  act  on  behalf  of  an  ex- 
isting principal,  who  must  be  named  or  otherwise 
described. 

Assumption  of  Agency. 

No  act  performed  by  one  man  can  be  adopted  by  another 
as  his  own  unless  it  was  done  professedly  on  his  behalf.  In 
other  words,  an  act,  to  be  capable  of  ratification,  must,  as  a 
rule,1  be  done  by  one  who  assumes  openly  to  act  as  agent.2 

document  with  an  unauthorized  "signature  was  uttered  under  such 
circumstances  of  intent  to  defraud  that  it  amounted  to  the  crime 
of  forgery  it  is  in  the  power  of  the  person  v whose  name  was  forged 
to  ratify  it,  so  as  to  make  it  a  defense  for  the  forger  against 
a  criminal  charge.  I  do  not  think  he  could.  But  if  the  person 
whose  name  was  without  authority  used  chooses  to  ratify  the 
act,  even  though  known  to  be  a  crime,  he  makes  himself  civilly 
responsible,  just  as  if  he  had  originally  authorized  it."  McKenzie 
v.  British  Linen  Co.,  6  App.  Cas.  82,  per  Lord  Blackburn. 

is  McKenzie  v.  British  Linen  Co.,  6  App.  Cas.  82;  Forsyth  v.  Day, 
46  Me.  176;  Grout  v.  De  Wolf,  1  R.  I.  393;  Woodruff  v.  Munroe, 
33  Md.  146;  Rudd  v.  Matthews,  79  Ky.  479,  42  Am.  Rep.  231. 

§  14.  i  An  exception  exists  in  case  of  ratification  of  forgery  hi 
Jurisdictions  where  such  ratification  Is  sustained.  Ante,  48. 

2  Wilson  v.  Tumman,  6  M.  &  G.  236;  Watson  v.  Swann,  11  C. 
B.  N.  S.  756;  Lyell  v.  Kennedy,  18  Q.  B.  D.  796;  Hamlin  v.  Sears, 
82  N.  Y.  327;  Grund  v.  Van  Vleck,  69  111.  479;  Roby  v.  Cossitt,  78 
111.  638;  Ironwood  Store  Co.  v.  Harrison,  75  Mich.  197,  42  N.  W. 
808;  Mitchell  v.  Association,  48  Minn.  278,  51  N.  W.  608;  Commer* 
clal  &  Agricultural  Bank  v.  Jones,  18  Tex.  811,  825;  RawHngs  v. 
Neal,  126  X.  C.  271,  35  S.  E.  597. 


§  14)  CONDITIONS  OF  PERFORMANCE   OF  ACT.  55 

In  Wilson  v.  Tumman,8  Tindal,  C.  J.,  said:  "That  an  act 
done,  for  another,  by  a  person  not  assuming  to  act  for  him- 
self, but  for  such  other  person,  though  without  any  precedent 
authority  whatever,  becomes  the  act  of  the  principal,  if  sub- 
sequently ratified  by  him,  is  the  known  and  well-established 
rule  of  law.  In  that  case  the  principal  is  bound  by  the  act, 
whether  it  be  for  his  detriment  or  his  advantage,  and  whether 
it  be  founded  on  a  tort  or  a  contract,  to  the  same  extent  as 
by,  and  with  all  the  consequences  which  follow  from,  the  same 
act  done  by  his  previous  authority.  Such  was  the  precise  dis- 
tinction taken  in  the  Year  Book,  7  Hen.  4,  fo.  35,*  that  if  the 
bailiff  took  the  heriot,  claiming  property  in  it  himself,  the 
subsequent  agreement  of  the  lord  would  not  amount  to  a 
ratification  of  his  authority,  as  bailiff  at  the  time;  but  if  he 
took  it,  at  the  time,  as  bailiff  of  the  lord,  the  subsequent  rati- 
fication by  the  lord  made  him  bailiff  at  the  time."  According- 
ly, if  A.  enters  into  a  contract  with  C.,  openly  assuming  to 
act  as  the  agent  of  B.,  B.  may  ratify  it;  but,  if  A.  enters  into 
a  contract  in  his  own  name  with  C.,  A.  cannot  confer  the 
benefit  of  it  upon  B.,  or  divest  himself  of  his  liability  towards 
C.,  by  procuring  a  ratification  from  B.8  It  follows  that  a 
contract  cannot  be  ratified  by  an  undisclosed  principal.6  Nor 
can  a  contract  entered  into  by  A.  as  agent  for  D.  be  ratified 
byB.T 

«  6  M.  &  G.  236.  *  Y.  B.  7  H.  IV,  34,  pi.  1. 

B  Watson  v.  Swann,  11  0.  B.  N.  S.  756;  Fellows  v.  Commissioners, 
86  Barb.  (N.  Y.)  655;  Western  Pub.  House  v.  District  Tp.,  84 
Iowa,  101,  50  N.  W.  551;  McDonald  v.  McCoy,  121  Cal.  55,  53 
Pac.  421. 

«  Keighley  v.  Durant  [1901]  A.  C.  240,  reversing  Durant  v.  Rob- 
erts [1900]  1  Q.  B.  629;  Fradley  v.  Hyland  (C.  Q)  37  Fed.  49,  52, 
2  L.  R.  A.  749. 

f  Where  A.  entered  into  an  agreement  professedly  on  behalf  of 
B.'s  wife  and  C.,  B.  could  not  ratify  so  as  to  give  him  a  right  to 
sue  on  it  jointly  with  his  wife  and  C.  Sanderson  v.  Griffith,  5  B. 
&  O.  909. 

"Where  a  contract  is  signed  by  one  who  professes  to  be  signing 
'as  agent,'  but  who  has  no  principal  existing  at  the  time,  and*  the 


56  CREATION  OF  RELATION — RATIFICATION.  (Ch.  3 

Existence  of  Principal. 

The  act  must  be  performed  on  behalf  of  a  quasi  principal 
who  is  in  existence.8  The  most  frequent  application  of  this 
rule  arises  where  the  promoters  of  a  proposed  corporation 
enter  into  a  contract  on  its  behalf,  intending  that  the  contract 
shall  take  effect  as  its  contract  after  its  incorporaion.  In 
such  case  there  can  be  no  ratification.8  The  subsequently 
formed  corporation  may,  indeed,  make  itself  liable  by  enter- 
ing into  a  new  contract  upon  the  same  terms  as  the  old,10 
or  it  may  make  itself  liable  by  accepting  the  benefits  of  per- 
formance under  circumstances  which  give  rise  to  an  implied 

contract  would  be  altogether  inoperative  unless  binding  upon  the 
person  who  signed  it,  he  is  bound  thereby;  and  a  stranger  cannot, 
by  a  subsequent  ratification,  relieve  him  from  that  responsibility." 
Kelner  v.  Baxter,  L.  R.  2  C.  P.  174,  per  Earle,  C.  J.;  Richardson  v. 
Payne,  114  Mass.  429. 

s  "When  ratification  Is  admitted  the  original  contract  is  imputed 
by  a  fiction  of  law  to  the  person  ratifying,  and  the  fiction  is  not 
allowed  to  be  extended  beyond  the  bounds  of  possibility.  Perhaps 
there  is  no  solid  reason  for  the  rule,  but  it  is  an  established  one." 
Pollock,  Contr.  (3d  Ed.)  118,  note  c. 

"Putting  out  of  view  the  cases  of  assignees  of  bankrupts  and 
administrators,  there  is  no  case  in  which  a  person  can  by  subse- 
quent ratification  make  himself  liable  as  principal,  so  as  to  discharge 
the  agent,  where  the  principal  was  not  in  existence  at  the  time 
of  the  original  contract."  Scott  v.  Lord  Ebury,  L.  R.  2  0.  P.  255, 
267,  per  Willes,  J. 

» Kelner  v.  Baxter,  L.  R.  2  C.  P.  174;  Scott  v.  Lord  Ebury,  L. 
R.  2  C.  P.  255;  Re  Empress  Engineering  Co.,  16  Ch.  D.  125;  Re 
Northumberland  Ave.  Hotel  Co.,  L.  R.  33  Oh.  D.  16;  Stainsby  v. 
Boat  Co.,  3  Daly  (N.  Y.)  98;  Abbott  v.  Hapgood,  150  Mass.  248, 
22  N.  E.  907,  5  L.  R.  A.  586,  15  Am.  St.  Rep.  193.  Contra:  Oakes  v. 
Water  Co.,  143  N.  Y.  430,  38  N.  E.  461,  26  L.  R.  A.  544. 

Where  a  corporation  organized  pursuant  to  statute,  but  before 
its  articles  were  filed  as  thereby  required,  entered  into  a  contract, 
its  subsequent  recognition  of  the  contract  was  a  ratification,  although 
the  statute  declared  that  a  corporation  so  organized  should  not 
commence  business  before  such  articles  were  filed.  Whitney  v. 
Wyman,  101  U.  S.  393,  25  L.  Ed.  1050. 

10  Howard  v.  Patent  Ivory  Co.,  38  Ch.  D.  156. 


g  14)  CONDITIONS   OF   PERFORMANCE   OF  ACT.  57 

promise  to  pay  therefor;11  but  such  liability  does  not  rest 
upon  ratification  and  does  not  relate  back.12  An  exception, 
or  an  apparent  exception,  to  the  rule  is  recognized  in  the 
case  of  contracts  made  on  behalf  of  estates  of  deceased  or 
bankrupt  persons,  where  the  title  of  the  administrator  or  as- 
signee in  bankruptcy  for  the  protection  of  the  estate  vests 
by  relation,  and  the  administrator  or  assignee,  though  not 
yet  appointed,  existing,  as  it  is  said,  in  contemplation  of  law, 
may,  when  subsequently  appointed,  ratify  the  contract.18 

Designation  of  Principal. 

Although  the  act  must  be  done  professedly  on  behalf  of  a 
principal  who  exists,  he  need  not  be  named  or  even  known  to 
the  agent.  It  is  enough  if  he  be  capable  of  being  ascertained 
and  be  described.14  Thus,  a  policy  of  insurance  effected  on  a 
vessel  on  behalf  of  all  persons  interested  may  be  ratified  by 
any  person  who  in  fact  was  interested.15  So,  a  contract 
made  on  behalf  of  the  heirs  of  A.  or  the  administrator  of 
A.'s  estate,  though  the  heirs  or  administrator  be  unknown 
to  the  person  assuming  to  act  on  their  behalf,  may  be  ratified 
by  them.1* 

"  Low  v.  Railroad,  45  N.  H.  370;  Bell's  Gap  R.  Co.  v.  Cristy,  79 
Pa.  54,  21  Am.  Rep.  39;  McArthur  v.  Printing  Co.,  48  Minn.  319, 
51  N.  W.  216,  31  Am.  St.  Rep.  653;  Paxton  Cattle  Co.  v.  Bank, 
21  Neb.  621,  33  N.  W.  271,  59  Am.  Rep.  852. 

12  Hence,  though  a  contract  made  on  behalf  of  a  contemplated 
corporation  was  within  the  statute  of  frauds  because  by  its  terms 
not  to  be  performed  within  one  year,  a  new  contract  implied  from 
acceptance  of  performance  by  the  corporation  was  not  within  the 
statute.  McArthur  v.  Printing  Co.,  48  Minn.  319,  51  N.  W.  216, 
31  Am.  St  Rep.  653. 

is  Foster  v.  Bates,  12  M.  &  W.  226. 

i*  Watson  v.  Swann.  11  0.  B.  N.  S.  756. 

»»  Hagedorn  v.  Oliverson,  2  M.  &  S.  485. 

i«  Foster  v.  Bates,  1  D.  &  L.  400,  12  M.  &  W.  226;  Lyell  y. 
Kennedy,  14  App.  Cas.  437. 


58  CREATION  OF  RELATION- — RATIFICATION.  (Oh.  3 


WHO  MAY  RATIFY. 

15.  Any  person  who  would  have  been  competent  to  author- 
ize an  act,  performed  in  his  behalf,  when  it  was  per- 
formed, and  who  would  still  be  competent  to  authorize 
it,  may  ratify  it. 

A  person  may  ratify  any  act  which  he  would  have  been 
competent  to  authorize,  provided  he  be  still  competent.1 
Thus,  a  corporation  may  ratify  an  act  within  its  corporate 
powers.2  An  agent,  even,  may  ratify  an  unauthorized  act 
done  on  behalf  of  his  principal  by  another,  if  his  powers  are 
such  that  he  might  have  authorized  it.8  Within  this  principle, 
an  unauthorized  act  done  on  behalf  of  a  corporation  may  be 
ratified  by  its  proper  offices,  provided  the  act  be  within  the 
scope  of  the  corporate  powers.*  But  since  ratification  of  an 

§  15.  i  Armitage  v.  Widoe,  36  Mich.  124;  Marsh  v.  Fulton  Co.,  10 
Wall.  (U.  S.)  676,  19  L.  Ed.  1040. 

As  to  the  exceptional  rule  prevailing  In  marine  insurance,  that  a 
person  on  whose  behalf  insurance  is  effected  may  ratify  after 
knowledge  of  loss,  though  he  would  not  then  be  able  to  make  such 
a  contract,  see  post,  p.  83,  note  24. 

2  Fleckner  v.  Bank,  8  Wheat.  (U.  S.)  363,  5  L.  Ed.  631;   Despatch 
Line  of  Packets  v.  Manufacturing  Co.,  12  N.  H.  205,  37  Am.  Dec. 
203;    Kelsey  v.  Bank,  69  Pa.  426;    Irvine  v.  Union  Bank,  2  App. 
Gas.  366;    Morawetz,  Corp.  §  618.     The  state  may  ratify:     State  v. 
Butties'  Ex'r,  3  Ohio  St  309;   State  v.  Shaw,  28  Iowa,  67;   State  v. 
Torinu»i  26  Minn.  1,  49  N.  W.  259,  37  Am.  Rep.  395. 

Where  an  agent  of  a  state  exceeds  his  authority  In  selling  and 
delivering  property  of  his  principal,  and  taking  a  note  for  the  price, 
the  legislature  may  by  statute,  in  the  absence  of  constitutional  pro- 
hibition, ratify  the  transaction,  and  enforce  payment  of  the  note. 
State  v.  Torinus,  supra. 

A  municipal  corporation  which  is  without  authority  to  issue 
bonds  cannot  validate  them  by  ratification.  Calhoun  v.  Millard,  121 
N.  Y.  69,  24  N.  E.  27,  8  L.  R.  A.  248. 

3  Mound  City  Mut.  Life  Ins.  Co.  v.  Huth,  49  Ala.  530;    Palmer  v. 
Cheney,  35  Iowa,  281;  Iron  wood  Store  Co.  v.  Harrison,  75  Mich.  197, 
42  N.  W.  808;    Whitehead  v.  Wells,  29  Ark.  99. 

-Fleckner  v.  Bank,  8  Wheat.  338,  5  L.  Ed.  631;   Sherman  v.  Fitch, 


§  15)  WHO   MAY   RATIFY.  59 

act  can  have  no  greater  effect  than  previous  authority  to  do 
the  act,  a  person  who  is  incompetent  cannot  ratify.6  Nor  if 
he  was  incompetent  when  the  act  was  done,  so  that  his 
appointment  of  an  agent  would  have  been  void,  can  he  ratify 
it  upon  subsequently  becoming  competent.6  Thus,  in  ju- 
risdictions where  the  appointment  of  an  agent  by  an  infant 
is  void  7  he  cannot  ratify  upon  coming  of  age,8  although  in 
jurisdictions  where  the  appointment  is  merely  voidable  he 
may  ratify.9  Whether  an  insane  person  may  ratify  an  un- 
authorized act  after  removal  of  his  disability  depends  upon 
whether  the  appointment  of  an  agent  by  an  insane  person  is 
voidable  or  void.10 

It  is  said  that  the  principal  may  not  ratify  a  contract  un- 
less he  have  present  ability  to  perform  it ;  for  example,  that 
a  principal  may  not  ratify  a  contract  for  the  sale  of  land  if  he 
has  already  conveyed  the  land  to  a  stranger.11  Undoubted- 

98  Mass.  59;  Lyndeborough  Glass  Co.  v.  Glass  Co.,  Ill  Mass.  315; 
Kelesy  v.  Bank,  69  Pa.  426. 

6  Doe  v.  Roberts,  16  M.  &  W.  778;  Armitage  v.  Widoe,  36  Mich. 
124;  Trueblood  T.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Macfar- 
land  v.  Heim,  127  Mo.  327,  29  S.  W.  1030,  48  Am.  St.  Rep.  629 
(married  woman).  See,  also,  Brady  v.  Mayor,  16  How.  Prac.  (N. 
Y.)  432. 

8  The  execution  by  a  husband  of  a  lien  on  crops  belonging  to 
his  wife  without  her  joining,  being  void,  she  cannot  ratify  on  be- 
coming discovert.  Rawlings  v.  Neal,  126  N.  O.  271,  35  S.  E.  597. 

i  Post,  p.  94. 

•  Trueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756. 

•  Coursolle  v.  Weyerhauser,  69  Minn.  328,  72  N.  W.  697. 

10  Post,  p.  98. 

11  "It  follows,  also,  from  the  general  doctrine,  that  a  ratification 
Is  equivalent  to  a  previous  authority,    that  a  ratification  can  only 
be  made  when  the  principal  possesses  at  the  time  the  power  to  do 
the  act  ratified.    He  must  be  able,  at  the  time,  to  make  the  contract 
to  which,  by  his  ratification,  he  gives  validity.     The  ratification  is 
the  first  proceeding  by  which  he  becomes  a  party  to  the  transac- 
tion, and  he  cannot  acquire  or  confer  the  rights  resulting  from  the 
transaction,   unless  in  a  position  to   enter  directly  upon  a  similar 
transaction  himself.     Thus,  if  an  individual,  pretending  to  be  the 
agent  of  another,  should  enter  into  a  contract  for  the  sale  of  land 


60  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

ly  he  cannot  by  ratifying  defeat  the  rights  of  his  grantee.12 
But  it  seems  that  he  may  nevertheless,  if  he  sees  fit,  ratify 
the  contract,  thereby  making  himself  liable  to  the  other  par- 
ty for  the  result  of  nonperformance,  and  to  the  agent,  as  in 
other  cases  of  ratification ;  in  other  words,  that  he  may  rati- 
fy, but  that  the  retrospective  effect  of  the  ratification  will  be 
limited  by  the  rights  which  have  intervened.1* 

HOW    AN    ACT    MAY    BE    RATIFIED. 

16.  An  act  may  be  ratified  by  any  words  or  conduct  showing 
an  intention  npon  the  part  of  the  person  ratifying 
to  adopt  the  act  in  whole  or  in  part  as  his  own;  except 
that,  if  authority  to  do  an  act  must  be  conferred  by 
particular  form,  ratification  must  ordinarily  be  by 
like  form. 

of  his  assumed  principal,  it  would  be  Impossible  for  the  latter  to 
ratify  the  contract  if,  between  its  date  and  the  attempted  ratifica- 
tion, he  had  disposed  of  the  property.  He  could  not  defeat  the 
intermediate  sale  made  by  himself,  and  impart  validity  to  the  sale 
made  by  the  pretended  agent,  for  his  power  over  the  property  or 
to  contract  for  its  sale  would  be  gone."  McCrachen  v.  City  of  San 
Francisco,  16  Oal.  591,  per  Field,  0.  J. 

12  Post,  p.  75. 

is  "The  ratification  operates  upon  the  act  ratified  precisely  as 
though  authority  to  do  the  act  had  been  previously  given,  except 
where  the  rights  of  third  parties  have  intervened  between  the  act 
and  the  ratification.  The  retroactive  effect  of  the  ratification  is 
subject  to  this  qualification:  The  intervening  rights  of  third  per- 
sons cannot  be  defeated  by  the  ratification.  In  other  words,  it  is 
essential  that  the  party  ratifying  should  be  able  not  merely  to  do 
the  act  ratified  at  the  time  the  act  was  done,  but  also  at  the  time 
the  ratification  was  made.  *  *  *  The  question,  therefore,  in  this 
case  is  whether  any  rights  of  third  parties  did  thus  intervene  be- 
tween the  act  of  substitution  by  Hoinans  and  its  adoption  and  ratifi- 
cation by  Tullis,  which  defeated  the  retroactive  efficacy  of  the  ratifi- 
cation." Cook  v.  Tullis,  18  Wall.  (U.  S.)  332,  21  L.  Ed,  933,  per 
Field,  J. 


16-17)  HOW  AN  ACT  MAT   BE   RATIFIED.  61 


KNOWLEDGE    OF   FACTS. 

17.  Ratification  is  not  binding  upon  the  person  ratifying 
unless  made  with  knowledge  of  all  the  material  facts, 
or  unless  made  -with  the  intention  to  ratify  whatever 
the  facts  may  be. 

In  General. 

Ratification  is,  as  we  have  seen,1  the  exercise  of  a  right  of 
election  on  the  part  of  the  quasi  principal  to  adopt  as  his 
own  an  act  done  on  his  behalf.  It  is  therefore  an  assent  to 
accept  the  benefits  and  burdens  of  the  act.  It  follows  that 
the  ratification  must  be  of  the  act  as  a  whole,  or  in  toto,  with 
all  its  burdens,  or  not  at  all.2  This  principle  is  illustrated 
by  the  rule  that  any  conduct  of  the  principal,  with  knowledge 
of  the  facts,  in  recognition  of  the  transaction,  is  a  ratifica- 
tion.8 Since  ratification  rests  upon  assent  *  it  is  ordinarily 
necessary,  as  will  be  shown  later,  that  the  person  ratifying 
have  knowledge  of  the  facts,  for  otherwise  the  assent  is  only 
apparent,  and  not  real,  and  the  ratification  will  not  be  bind- 
ing upon  him  unless  he  intended  to  ratify  whatever  the  facts 
might  turn  out  to  be.  The  assent  of  the  principal  may  be 
shown  by  words  or  by  conduct;  or,  in  other  words,  it  may 
be  express  B  or  implied.6  No  formalities  are  requisite.  The 
only  exception  to  this  rule  is  that,  where  an  act  is  one  which 
could  have  been  authorized  only  by  observance  of  a  particu- 

f  §  16-17.    i  Ante,  p.  47. 

2  Hovll  v.  Pack,  7  East,  164;  Brlstow  v.  Whltmore,  9  H.  L.  Cas. 
891;  Galnes  v.  Miller,  111  U.  S.  395,  4  Sup.  Ct  426,  28  L.  Ed.  466; 
Teague  v.  Maddox,  150  U.  S.  128,  14  Sup.  Ct  46,  37  L.  Ed.  1025; 
Brigham  v.  Palmer,  3  Allen  (Mass.)  450;  Shoninger  v.  Peabody,  57 
Conn.  42,  17  Atl.  278.  14  Am.  St  Rep.  88;  Billings  v.  Mason,  80  Me. 
496,  15  Atl.  59;  Southern  Exp.  Co.  v.  Palmer,  48  Ga.  85;  Eberts  v. 
Selover,  44  Mich.  519,  7  N.  W.  225,  38  Am.  Rep.  278;  Nye  v.  Swan, 
49  Minn.  431,  52  N.  W.  39;  Wells  v.  Hickox,  1  Kan.  App.  485,  40 
Pac.  821;  Key  v.  Insurance  Co.,  1Q7  Iowa,  446,  78  N.  W.  68. 

»  Post,  p.  65.  «  Post,  p.  62. 

*  Post,  p.  62.  •  Post,  p.  65. 


62  CREATION  OF   RELATION RATIFICATION.  (Oh.  3 

lar  form,  that  form  must  be  observed  to  effect  a  ratification.7 
Although  a  ratification  once  made  is  irrevocable,8  the  mere 
fact  that  the  principal  at  first  refuses  to  recognize  an  unau- 
thorized act  does  not  prevent  him  from  afterwards  ratify- 
ing,9 provided  the  other  party  has  not  acted  upon  the  re- 
fusal.10 

Express  Ratification. 

Any  form  of  words  which  expresses  the  assent  of  the  prin- 
cipal to  adopt  an  act  done  in  his  behalf  is  sufficient  evidence 
of  ratification.11  Except  in  the  cases  mentioned  in  the  next 

i  Post,  p.  63. 

Where  notes  of  a  town  could  not  be  issued  by  Its  treasurer  unless 
authorized  by  a  town  meeting  held  pursuant  to  notice,  specifying  its 
object,  their  unauthorized  issue  by  him  could  not  be  ratified  except 
by  vote  of  a  town  meeting  held  pursuant  to  such  notice.  Town  of 
Bloomfield  v.  Bank,  121  U.  S.  135,  7  Sup.  Ct.  865,  30  L.  Ed.  923; 
School  Dist.  No.  6  v.  Insurance  Co.,  62  Me.  330. 

»  Post,  p.  76. 

»  Soames  v.  Spencer,  1  D.  &  R.  32;  Woodward  v.  Harlow,  28  Vt 
338. 

10  Wilkinson  v.  Harwell,  13  Ala.  660.     See  Fiske  v.  Holmes,  41  Me. 
441. 

11  Where  an  agent,  without  authority,  signed  a  distress  warrant, 
and  the  principal,  on  being  informed,  said  that  he  should  leave  the 
matter  in  his  agent's  hands,  this  was  sufficient  evidence  of  ratifica- 
tion.    Haselar  v.  Lemogue,  5  C.  B.  N.  S.  530. 

Where  an  agent  entered  into  an  unauthorized  agreement,  and  the 
principal  wrote  that  he  did  not  know  what  the  agent  had  agreed  to, 
but  that,  of  course,  he  must  support  him  in  all  that  he  had  done,  the 
evidence  of  ratification  was  sufficient.  Fitzmaurlce  v.  Bagley,  6  El. 
&  B.  868.  See,  also,  Merrill  v.  Parker,  112  Mass.  250;  Goss  v.  Ste- 
vens, 32  Minn.  472,  21  N.  W.  549;  Henry  Hess  &  Co.  v.  Baar,  14 
Misc.  Rep.  286,  35  N.  Y.  Supp.  687;  Brown  v.  Wilson,  45  S.  C.  519, 
23  S.  E.  630,  55  Am.  St.  Rep.  779;  Fenn  v.  Dickey,  178  Pa.  258,  35 
Atl.  1108;  Chauche  v.  Pare,  21  C.  C.  A.  329,  75  Fed.  283;  Blakley 
v.  Cochran,  117  Mich.  394,  75  N.  W.  940. 

Giving  as  a  reason  for  repudiating  a  contract,  unauthorized  in  sev- 
eral particulars,  that  it  is  unauthorized  in  a  particular  in  which  it  is 
authorized,  is  not  a  ratification.  Brown  v.  Henry,  172  Mass.  559,  52 
N.  E.  1073. 


§§  16-17)  HOW  AN   ACT  MAT   BE   RATIFIED.  63 

succeeding  paragraphs,  it  is  immaterial  whether  the  words 
are  spoken  or  written,  or  whether  they  are  under  seal. 

Same — Ratification  of  Deed. 

As  we  have  seen,  at  common  law  an  agent  can  be  appoint- 
ed to  execute  an  instrument  under  seal  only  by  instrument 
of  like  character.12  Ratification  cannot  stand  upon  a  higher 
ground  than  original  authority,  and  if  the  act  must  be  under 
seal  the  ratification  also  must  be  under  seal.1*  Such  a  ratifi- 
cation may  be  effected  by  an  instrument  in  terms  ratifying 
the  deed,  or  by  a  power  of  attorney  prospective  in  terms,  au- 
thorizing the  deed,  but  dated  back  to  a  period  anterior  to 
the  execution  of  the  deed  it  is  intended  to  ratify.14  As  in 
case  of  appointment,15  if  it  was  not  essential  that  the  in- 
strument ratified  should  be  under  seal,  the  seal,  though  at- 
tached, being  superfluous,  may  be  disregarded,  and  a  parol 
ratification  is  sufficient.16  An  exception  to  the  rule  is  gen- 

12  Ante,  p.  21. 

is  Spofford  v.  Hobbs,  29  Me.  148,  48  Am.  Dec.  521;  Heath  v.  Nut- 
ter, 50  Me.  378;  Despatch  Line  of  Packets  v.  Manufacturing  Co.,  12 
N.  H.  205,  37  Am.  Dec.  203;  Blood  v.  Goodrich,  12  Wend.  (N.  Y.) 
525,  27  Am.  Dec.  152;  Grove  v.  Hodges,  55  Pa.  504;  Pollard  v. 
Gibbs,  55  Ga.  45;  Zimpelman  v.  Keating,  72  Tex.  318,  12  S.  W.  177. 
See  Oxford  v.  Crowe  (1893)  3  Ch.  535. 

"If  the  principal  adopt  the  sale  and  receive  the  purchase  money 
•with  full  knowledge  of  the  facts,  It  would  be  a  ratification  by  estop- 
pel." Zimpelman  v.  Keating,  per  Collard,  0.,  supra.  Cf.  Grove  v. 
Hodges,  supra. 

Where  a  wife  executed  a  deed  in  blank  as  to  the  name  of  the 
grantee,  the  date  and  the  consideration,  and  delivered  it  to  her  hus- 
band, who  filled  the  blanks  and  delivered  it  to  defendant  as  grantee, 
ard  she  knowingly  used  the  consideration,  she  thereby  ratified  the 
conveyance.  Reed  v.  Morton,  24  Neb.  760,  40  N.  W.  282,  1  L.  R.  A. 
73G,  8  Am.  St  Rep.  247.  As  to  authority  to  fill  blanks,  ante,  p.  22. 

i*  Miliikin  v.  Coombs,  1  Greenl.  (Me.)  343,  10  Am.  Dec.  70;  Riggan 
v.  Grain,  86  Ky.  249,  5  S.  W.  561.  See,  also,  Rice  v.  McLarren,  42 
Me.  157.  Contra:  Moore  v.  Lockett,  2  Bibb  (Ky.)  67,  4  Am.  Dec. 
683. 

n»  Ante,  p.  22. 

»«  Worrall  v.  Munn,  5  N.  Y.  229,  238.  55  Am.  Dec.  330;    State  v. 


04  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

erally  recognized  in  cases  of  partnership,  where  it  is  held 
that  one  partner  may  ratify  by  parol  a  deed  executed  by  an- 
other in  the  name  of  the  firm.17  In  Massachusetts  the  court 
has  extended  the  doctrine  of  parol  ratification  to  all  classes 
of  cases.18 

Same — Writwig  not  Under  Seal — Statute  of  Frauds. 

At  common  law  all  contracts  which  are  not  specialties  may 
be  ratified,  as  they  may  be  authorized,  by  parol.18  Unless 
the  authority  of  an  agent  to  execute  a  simple  contract  is  re- 
quired by  statute  to  be  in  writing,  ratification  may  be  by  any 
form  of  parol.  Even  under  the  statute  of  frauds,  as  has 
been  pointed  out,20  the  requirement  that  the  agreement  or 
note  or  memorandum,  if  signed  by  some  person  other  than 
the  party  to  be  charged,  must  be  signed  by  some  person 
"thereunto  by  him  lawfully  authorized"  is  satisfied  by  any 
form  of  appointment  or  ratification  sufficient  by  the  rules  of 
the  common  law.21  But,  where  a  statute  enacts  that  the  au- 
thority must  be  in  writing,  the  ratification  must  be  in  like 
form.22 

Railroad  Co.,  8  S.  C.  129;  Adams  v.  Power,  52  Miss.  828;  Hammond 
v.  Hannin,  21  Mich.  374,  4  Am.  Rep.  490;  Lynch  v.  Smyth,  25  Colo. 
103,  54  Pac.  634.  Contra:  Pollard  v.  Gibbs,  55  Ga.  45. 

"  Cady  v.  Shepherd,  11  Pick.  (Mass.)  400,  22  Am.  Dec.  379;  Skin- 
ner v.  Dayton,  19  Johns.  (N.  Y.)  513,  10  Am.  Dec.  286;  Peine  v. 
Weber,  47  111.  45. 

is  Mclntyre  v.  Park,  11  Gray  (Mass.)  102;  Holbrook  v.  Chamberlin. 
116  Mass.  155,  17  Am.  Rep.  146. 

i»  Ante,  p.  20.  20  Ante,  p.  28. 

21  McLean  v.  Dunn,  4  Birig.  722;    Soames  v.  Spencer,  1  D.  &  R. 
32;  Ehrraanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188;   Keim  v. 
O'Reilly,  54  N.  J.  Eq.  418,  34  Atl.  1073. 

22  McDowell  v.  Simpson,  3  Watts  (Pa.)  129,  27  Am.  Dec.  338;   Goss 
v.  Stevens,  32  Minn.  472,  21  N.  W.  549;    Kozel  v.  Dearlove,  144  111. 
23,  32  N.  E.  542,  36  Am.  St.  Rep.  416;    Hawkins  v.  McGroarty,  110 
Mo.  550,  19  S.  W.  830;  Long  v.  Poth,  16  Misc.  Rep.  85,  37  N.  Y.  Supp. 
670.     Contra:    Hammond  v.  Hannin,  21  Mich.  374,  4  Am.  Rep.  490. 


§§  16-17)  HOW   AN   ACT   MAT   BE    RATIFIED.  6D 

Implied  Ratification. 

Since  intention  may  be  manifested  by  conduct  as  well  as  by 
words,  ratification  will  be  implied  from  any  conduct  showing 
an  intention  to  adopt  the  act.  Any  act  done  in  recognition 
of  the  transaction,  in  whole  or  in  part,  if  done  with  knowl- 
edge of  all  the  material  facts,  is  evidence,  and  is  ordinarily 
conclusive  evidence,  of  ratification.  If  an  act  be  done  in  rec- 
ognition without  full  knowledge,  its  weight,  as  showing  a 
ratification,  will  depend  upon  whether,  in  view  of  all  the  cir- 
cumstances, it  may  reasonably  be  inferred  that  the  principal 
intended  to  adopt  the  act  at  all  events,  but  the  burden  is 
upon  the  person  seeking  to  establish  ratification  under  such 
circumstances."  The  acts  from  which  a  ratification  may  be 
implied  are  as  various  as  the  subject-matters  of  agency.** 

Same — Accepting  Benefits. 

A  principal  who,  with  knowledge,  accepts  the  benefit  of  a 
transaction,  is  deemed  to  have  ratified  it.25  Thus,  where  the 
agent  without  authority  makes  a  sale  or  a  purchase  the  prin- 
cipal, by  accepting  the  proceeds  of  the  sale,26  or  by  accepting 

«  Post,  p.  73. 

**  For  illustrations,  see  succeeding  paragraphs. 

Entering  into  negotiations  without  reservation  with  the  agent  for 
settlement  on  the  basis  that  he  is  accountable  for  the  price  ratifies 
an  unauthorized  sale.  Sanders  v.  Peck,  30  C.  C.  A.  530,  87  Fed.  61. 

25  Clarke  v.  Perrier,  2  Freem.  48;  Conwal  v.  Wilson,  1  Ves.  509: 
Cushman  v.  Loker,  2  Mass.  106;  Low  v.  Railroad  Co.,  46  N.  H.  284; 
Dunn  v.  Railroad  Co.,  43  Conn.  434;  Codwise  v.  Hacker,  1  Caine-s 
(N.  Y.)  526;  Palmerton  v.  Huxford,  4  Denio  (N.  Y.)  166;  Wheeler 
&  Wilson  Mfg.  Co.  v.  Aughey,  144  Pa.  398,  22  Atl.  667,  27  Am.  St. 
Rep.  638;  Hauss  v.  Niblack,  80  Ind.  407;  Bacon  v.  Johnson,  56  Mich. 
182,  22  N.  W.  276;  Reid  v.  Hibbard,  6  Wis.  175;  Rich  v.  Bank,  7 
Neb.  201,  29  Am.  Rep.  382;  Snow  v.  Grace,  29  Ark.  131;  Watersoii 
v.  Rogers,  21  Kan.  529. 

z«  Hunter  v.  Parker,  7  M.  &  W.  322;  Brewer  v.  Sparrow,  7  B.  & 
C.  310;  The  Bonita  v.  The  Charlotte,  Lush.  252;  Lindroth  v.  Litch- 
field  (C.  C.)  27  Fed.  894;  Lyman  v.  University,  28  Vt  560;  Tilleny 
v.  Wolverton,  54  Minn.  75,  55  N.  W.  822;  Town  of  Ansonia  v.  Cooper. 
64  Conn.  536,  30  Atl.  760;  Deering  &  Co.  v.  Bank,  81  Iowa,  222,  46 
N.  W.  1117;  Smith  v.  Barnard,  148  N.  Y.  420,  42  N.  E.  1054. 
TIFF.P.&  A.— 6 


66  CREATION   OF   RELATION RATIFICATION.  (Ch.  3 

the  property,27  is  held  to  ratify  the  sale  or  the  purchase.  So, 
where  the  principal  knowingly  accepts  rent  under  an  unau- 
thorized lease,28  or  the  proceeds  of  an  unauthorized  loan,29 
or  of  a  compromise,30  or  effects  a  settlement  with  an  agent 
for  embezzlement  of  the  proceeds  of  an  unauthorized  sale.31 
The  act  must,  however,  be  inconsistent  with  the  existence 
of  an  intention  not  to  adopt,  and  hence  conduct  which  would 
have  been  within  the  principal's  right  in  case  he  repudiated 
the  transaction  will  not  amount  to  ratification.82  And  if  the 
principal  is  ignorant  of  material  facts,  as  where  he  accepts 
moneys  from  an  agent  without  knowledge  that  they  are  the 

27  Cornwall  v.  Wilson,  1  Ves.  510;  Waitham  v.  Wakefleld,  1  Camp. 
120;  Hastings  v.  Bangor  House,  18  Me.  436;  Moss  v.  Mining  Co., 
5  Hill,  337;  Ketchum  v.  Verdell,  42  Ga.  534;  Jones  v.  Atkinson,  68 
Ala.  167;  Williams  v.  Lumber  Co.,  118  N.  C.  928,  24  S.  E.  800;  Mc- 
Kinstry  v.  Bank,  57  Kan.  279,  46  Pac.  302;  Ehrmanntraut  v.  Robinson, 
52  Minn.  333,  54  N.  W.  188  (entry  and  use  of  land  under  an  unau- 
thorized lease);  Hall  v.  White,  123  Pa.  95,  16  Atl.  521  (taking  posses- 
sion of  land  under  unauthorized  contract  for  purchase);  Chambers 
v.  Haney,  45  La.  Ann.  447,  12  South.  621  (selling  land  received  under 
unauthorized  exchange);  Wright  v.  Vinyard  Church,  72  Minn.  78,  74 
N.  W.  1015  (retaining  and  using  after  notice  of  repudiation). 

zs  Reynolds  v.  Davison,  34  Md.  662;  Burkhard  v.  Mitchell,  16  Colo. 
376,  26  Pac.  657. 

,20  Maddux  v.  Bevan,  39  Md.  485;  Perkins  v.  Boothby,  71  Me.  91; 
Taylor  v.  Ass'n,  68  Ala.  229;  Willis  v.  Sanitation  Co.,  53  Minn.  370, 
55  N.  W.  550. 

so  Strasser  v.  Conklin,  54  Wis.  102,  11  N.  W.  254;  Keeler  v.  Salis- 
bury, 33  N.  Y.  648;  Higginbotham  v.  May,  90  Va.  233,  17  S.  E.  941 ; 
Orvis  v.  Wells,  Fargo  &  Co.,  19  C.  C.  A.  382,  73  Fed.  110  (accepting 
payment  under  award  or  ratification  of  an  unauthorized  submission 
to  arbitration);  City  of  Findlay  v.  Pertz,  20  C.  C.  A.  662,  74  Fed. 
681;  National  Imp.  &  Const  Co.  v.  Maiken,  103  Iowa,  118.  72  N. 
W.  431. 

si  Ogden  v.  Marchand,  29  La.  Ann.  61.  Accepting  from  the  agent 
security  against  loss  which  might  result  from  an  unauthorized  act 
was  not  ratification.  Lazard  v.  Transportation  Co.,  78  Md.  1,  26  Atl. 
897. 

82  White  v.  Sanders,  32  Me.  188. 

The  owner  of  a  building  did  not  become  liable  for  improvements 
made  under  an  unauthorized  contract  with  his  agent,  because  he  aft- 


§§  16-17)  HOW  AN  ACT  MAY   BE   RATIFIED.  67 

proceeds  of  an  unauthorized  sale,  intention  to  ratify  cannot 
be  implied.** 

Same — Bringing  Suit. 

Bringing  an  action,  based  upon  the  unauthorized  transac- 
tion, whether  against  the  person  with  whom  the  agent  dealt, 
or  the  agent  himself,  is  ordinarily  conclusive  evidence  of  rati- 
fication.84 Thus,  where  the  principal  sues  the  other  party 

erwards  used  them,  where  they  were  of  such  a  character  that  they 
could  not  be  removed.  Mills  v.  Berla  (Tex.  Civ.  App.)  23  S.  W.  910. 

Where  defendant's  superintendent,  contrary  to  orders,  bought 
goods,  and,  colluding  with  the  seller,  caused  them  to  be  intermingled 
with  other  goods  from  the  same  seller,  some  of  which  had  been  paid 
for,  and  it  could  not  be  ascertained  whether  the  goods  in  question 
had  been  paid  for,  retaining  and  selling  them  was  not  a  ratification. 
Schutz  v.  Jordan  (C.  C.)  32  Fed.  55. 

Retaining  a  salesman  after  knowledge  of  his  unauthorized  act  Is 
not  evidence  of  ratification.  Deacon  v.  Greenfield,  141  Pa.  467,  21 
Atl.  650. 

A  mere  effort  on  the  part  of  the  principal,  after  knowledge  of  the 
unauthorized  act,  to  avoid  loss  thereby,  will  not  amount  to  ratifica- 
tion, so  as  to  relieve  the  agent  from  liability.  Triggs  v.  Jones,  4G 
Minn.  277,  48  N.  W.  1113;  post,  p.  87. 

»»  Thacher  v.  Pray,  113  Mass.  291,  18  Am.  Rep.  480.  See,  also, 
McGlassen  v.  Tyrroll  (Ariz.)  44  Pac.  1088;  Chicago  Edison  Co.  v. 
Fay,  164  111.  323,  45  N.  E.  534. 

Where  defendant  authorized  an  agent  for  a  certain  sum  to  obtain 
a  release  of  plaintiff's  interest  in  land,  and  the  agent  agreed  as  part 
of  the  consideration  for  obtaining  it  that  defendant  should  assume 
a  debt  of  plaintiff,  and  defendant,  in  ignorance  of  the  unauthorized 
agreement,  sold  the  land,  his  failure,  after  being  informed  of  it,  to 
restore  the  property,  was  not  a  ratification.  Martin  v.  Hickman,  64 
Ark.  217,  41  S.  W.  852. 

After  commencement  of  an  action  of  replevin  for  cattle  claimed  by 
defendants  under  a  sale  by  plaintiff's  agent,  which  plaintiff  claimed 
was  unauthorized,  but  before  trial,  plaintiff  learned  that  it  had  re- 
ceived the  benefit  of  a  portion  of  the  proceeds  of  sale.  Held,  that 
Its  failure  then  to  return  or  tender  such  portion  was  a  ratification 
which  defeated  recovery.  Johnston  v.  Investment  Co.,  49  Neb.  68, 
«»  N.  W.  383.  See,  also,  Farmers'  &  Merchants'  Bank  v.  Bank,  49 
Neb.  379,  68  N.  W.  488. 

•«  Smith  v.  Morse,  9  Wall.  (U.  S.)  82,  19  L.  Ed.  597;  Merrill  v.  Wil- 


68  CREATION  OF   RELATION RATIFICATION.  (Ch.  3 

to  a  contract  made  in  his  behalf,35  or  brings  an  action  to 
enforce  security  taken  in  his  name,86  or  sues  the  agent  for  an 
accounting  of  the  proceeds  of  an  unauthorized  transaction,37 
he  thereby  elects  to  take  the  benefit  of  the  transaction,  and 
adopts  it  in  toto. 

Same — Acquiescence —  Silence. 

While  an  unauthorized  act  cannot  take  effect  as  the  act  of 
the  principal  unless  it  be  ratified,  and  hence  need  not  be  re- 
scinded, it  is  evident  that  his  failure  to  express  dissent  upon 
being  informed  of  a  transaction  may  reasonably  give  ground 
for  inferring  assent.  If,  for  example,  an  agent  should  make 
an  unauthorized  sale  of  his  principal's  property,  and  the 
principal,  after  being  informed,  should  remain  silent,  know- 
ing that  the  purchaser  was  dealing  with  the  property  as  his 

son,  66  Mich.  232,  33  N.  W.  716;  Connert  v.  City  of  Chicago,  114  111. 
233,  29  N.  E.  280;  Tingley  v.  Boom  Co.,  5  Wash.  644,  32  Pac.  737,  33 
Pac.  1055  (pleading  an  unauthorized  contract  as  a  defense  held  a 
ratification). 

In  an  action  for  conversion  of  notes  collusively  transferred  to  de- 
fendant by  plaintiff's  agent,  it  appeared  that  under  the  contract  of 
agency  all  notes  were  to  be  taken  in  plaintiff's  name,  but  that  the 
agent  had  taken  them  in  his  own.  Held,  that  by  bringing  the  suit 
plaintiff  ratified  the  agent's  act,  and  might  recover  for  the  conversion. 
Warder,  Bushnell  &  Glessner  Co.  v.  Cuthbert,  99  Iowa,  681,  68  N. 
W.  917. 

35  "When  the  plaintiffs  were  informed  of  the  terms  of  the  contract 
made  by  their  agent  for  the  sale  of  the  piano  to  the  defendant,  they 
had  an  election  to  repudiate  the  arrangement.  *  *  *  But,  know- 
Ing  the  terms  of  sale,  they  elected  to  sue  in  assumpsit  on  the  contract 
for  the  agreed  price,  and  thereby  they  affirmed  the  contract,  and 
ratified  the  act  of  the  agent,  precisely  as  if  it  had  been  expressly  ap- 
proved upon  being  reported  to  them  by  the  agent  or  the  defendant." 
Shoninger  v.  Peabody,  57  Conn.  42,  17  Atl.  278,  14  Am.  St.  Rep.  88, 
per  Loomls,  J.;  Benson  v.  Liggett,  78  Ind.  452;  Curnane  v.  Scheidel, 
70  Conn.  13,  38  Atl.  875;  D.  M.  Osborn  Co.  v.  Jordan,  52  Neb.  465, 
72  N.  W.  479;  Edgar  v.  Joseph  Breck  &  Sons  Corp.,  172  Mass.  581, 
52  N.  E.  1083. 

se  Partridge  v.  White,  59  Me.  564. 

»T  Lyell  T.  Kennedy,  14  App.  Cas.  437;  Frank  v.  Jenkins,  22  Ohio 
St.  597. 


§§  16-17)  HOW   AN   ACT   MAT   BE    RATIFIED.  69 

own,  the  principal's  silence  would  speak  his  assent  as  clearly 
as  words.88  And,  notwithstanding  that  the  principal  may 
not  have  knowledge  that  third  persons  are  acting  upon  the 
assumption  that  the  agent's  act  was  authorized,  it  is  evident 
that  he  will  under  most  circumstances,  as  a  reasonable  man, 
upon  being  informed  of  an  assumption  of  authority,  express 
his  dissent  if  he  does  not  intend  to  adopt  the  transaction, 
and  that  his  mere  silence  is  evidence  of  ratification.  Such 
evidence  is,  of  course,  not  so  strong  in  the  case  of  an  act 
done  by  a  mere  stranger  who  has  volunteered  to -act  in  an- 
other's behalf  as  in  the  case  of  an  agent  who  has  exceeded 
his  authority.89  Where,  however,  the  relation  of  principal 
and  agent  already  exists,  the  rule  is  established  that  failure 
to  repudiate  within  a  reasonable  time  after  being  informed 
of  an  act  done  in  excess  of  authority  is  conclusive  evidence 
of  ratification.40  What  time  is  reasonable  must  depend  upon 
the  facts  of  each  case,  and  the  particular  circumstances  tend- 
ing to  excuse  or  explain  the  principal's  silence  or  to  im- 
pose the  duty  of  prompt  disavowal,  but  the  circumstances 
may  be  such  as  to  require  immediate  repudiation.41  The 

»8Hall  v.  Harper,  17  111.  82;  Swartwout  v.  Evans,  37  111.  442; 
Alexander  v.  Jones,  64  Iowa.  207,  19  N.  W.  913;  Baldwin  Fertilizer 
Co.  v.  Thompson,  106  Ga.  480,  32  S.  B.  591. 

«»  Post,  p.  71. 

«o  Prince  v.  Clark,  2  D.  &  R.  266;  Law  v.  Cross,  1  Black  (U.  S.) 
533,  17  L.  Ed.  185;  Union  Gold  Min.  Co.  v.  Bank,  96  U.  S.  640.  24 
L.  Ed.  648;  Norris  r.  Cook,  1  Curt.  (U.  S.)  464,  Fed.  Cas.  No.  10,305; 
Abbe  v.  Rood,  6  McLean  (U.  S.)  106,  Fed.  Cas.  No.  6;  Brigham  v. 
Peters,  1  Gray  (Mass.)  139;  Johnson  v.  Wingate,  29  Me.  404;  Curry 
v.  Hale,  15  W.  Va.  875;  Bray  v.  Gunn,  53  Ga.  144;  Mobile  &  M. 
Ry.  Co.  v.  Jay,  65  Ala.  113;  Clay  v.  Spratt,  7  Bush  (Ky.)  334;  Booth 
v.  Wiley,  102  111.  84;  Cooper  v.  Mulder,  74  Mich.  374,  41  N.  W.  1084; 
Cooper  v.  Schwartz,  40  Wis.  54;  Saveland  v.  Green,  Id.  431;  Union 
Gold  Min.  Co.  v.  Bank,  2  Colo.  565;  E.  Bement  &  Sons  v.  Armstrong 
(Tenn.  Ch.  App.)  39  S.  W.  899;  Smith  v.  Holbrook,  99  Ga.  256,  25  S. 
E.  627;  Hartlove  v.  William  Fait  Co.,  89  Md.  254,  43  Atl.  62. 

41  The  Australia,  Swab.  480;  Law  v.  Cross,  1  Black  (U.  S.)  533,  17 
L.  Ed.  185;  Foster  v.  Rockwell,  104  Mass.  167;  Hazard  v.  Spears, 
•43  N.  Y.  469;  Kelsey  v.  Bank,  69  Pa.  426. 


70  CREA11ON  OF   RELATION RATIFICATION.  (Ch.  3 

rule  is  sometimes  placed  upon  the  ground  of  equitable  es- 
toppel,42 and  clearly  the  principle  of  estoppel  is  applicable 
where  third  persons  have  acted  to  their  prejudice  in  reliance 
upon  the  apparent  assent;  but  the  rule  is  broader  than  that 
of  equitable  estoppel,  and  rests  upon  the  presumed  intention 
of  the  principal,  irrespective  of  whether  or  not  the  other 
party  has  actually  been  prejudiced  or  misled  by  the  delay.48 

Same — Act  Done  by  Stranger. 

When  the  unauthorized  act  is  not  the  act  of  an  agent  in 
excess  of  his  authority,  but  is  the  act  of  a  stranger,  silence 
on  the  part  of  the  quasi  principal  is  logically  entitled  to  less 
weight.  "Where  an  agency  actually  exists,"  says  Story, 
"the  mere  acquiescence  of  the  principal  may  give  rise  to  the 
presumption  of  an  intentional  ratification  of  the  act.  The 
presumption  is  far  less  strong,  and  the  mere  fact  of  acquies- 
cence may  be  deemed  far  less  cogent,  where  no  relation  of 
agency  exists  at  the  time  between  the  parties.  However, 
if  there  are  peculiar  relations  of  a  different  sort  between 
•the  parties,  such  as  that  of  father  and  son,  the  presumption 
of  a  ratification  will  become  more  vehement,  and  the  duty  of 
disavowal  on  the  part  of  the  principal  more  urgent,  when 

42  Smith  v.  Fletcher,  75  Minn.  189,  77  N.  W.  800.  See  Kent  v. 
Mining  Co.,  78  N.  Y.  159. 

*8  Cases  cited  supra,  notes  90,  91. 

In  Bigg  v.  Stone,  3  Sm.  &  Gif.  592,  where  a  son,  who  usually  acted 
ns  agent  for  his  father,  without  authority  sold  his  interest  in  land, 
the  court  said:  "It  is  clearly  established  that  the  father  had  full 
notice  of  the  agreement,  if  not  immediately  or  on  the  same  day,  yet 
certainly  within  five  days  after  the  agreement  was  signed.  It  can- 
not he  considered  that  any  express  act  on  his  part,  such  as  signature 
of  the  agreement  by  himself  or  any  other  solemnity  by  him  after  he 
became  privy  to  the  act  done  by  his  son  on  his  behalf,  was  essen- 
tially necessary.  Subject  to  his  right  to  a  reasonable  opportunity  to 
'  express  his  dissent,  every  additional  day  and  hour  of  silence  after 
he  becanie  privy  to  the  contract  operates  as  a  tacit  acquiescence,  and 
raises  the  presumption  of  assent."  Philadelphia,  W.  &  B.  R.  Co.  v. 
Cowell,  28  Pa.  329,  70  Am.  Dec.  128;  Lynch  v.  Smyth,  25  Colo.  103, 
54  Pac.  634. 


§§  16-17)  HOW   AN   ACT   MAY    BE    RATIFIED.  71 

the  facts  are  brought  to  his  knowledge."  44  Some  courts 
have,  indeed,  declared  that  where  no  agency  exists  the  quasi 
principal  is  under  no  duty  to  repudiate,  and  no  inference  of 
ratification  is  to  be  drawn  from  his  silence.48  This  objec- 
tion, however,  should  go  only  to  the  weight  and  not  to  the 
competency  of  the  evidence,  and  in  such  cases,  as  well  as 
in  those  where  a  prior  relation  has  existed,  the  question 
is  whether,  under  all  the  circumstances,  the  inference  of  rati- 
fication may  reasonably  be  drawn  from  the  principal's  si- 
lence.4* "If  those  circumstances  are  such  that  the  inaction 

4*  Story,  Ag.  §  256. 

45  Ward  v.  Williams,  26  111.  447,  79  Am.  Dec.  385. 

"Should  a  stranger,  without  authority,  assume  to  act  as  the  agent 
of  another,  it  would  be  intolerable  if  such  other  would  be  bound  to 
compensate  the  interloper  for  his  services  unless  he  gave  the  latter 
*notice  of  his  dissent  within  a  reasonable  time  thereafter.'  The  law 
imposes  no  such  obligation  upon  business  men  In  respect  to  those 
who.  without  authority,  interfere  In  their  affairs."  Kelly  v.  Phelps, 
57  Wis.  425,  15  N.  W.  385,  per  Lyon,  J.;  1  Livermore,  Ag.  50. 

*«  Philadelphia,  W.  &  B.  R.  Co.  v.  Cowell,  28  Pa.  329,  70  Am.  Dec. 
128;  Heyn  v.  O'Hagen,  60  Mich.  150,  26  N.  W.  861;  Saveland  v. 
Green,  40  Wis.  431.  See,  also,  Ladd  v.  Hildebrant,  27  Wis.  135.  9 
Am.  Rep.  445;  Harrod  v.  McDaniels,  126  Mass.  413;  Myers  v.  Insur- 
ance Co.,  32  Hun  (N.  Y.)  321;  Merrltt  v.  Bissell,  155  N.  T.  396,  50 
N.  E.  280;  Dugan  v.  Lyman  (N.  J.  Sup.)  23  Atl.  657. 

"If  mental  assent  may  be  inferred  from  circumstances,  silence 
may  indicate  it  as  well  as  words  or  deeds.  To  say  that  silence  is 
no  evidence  of  It,  is  to  say  that  there  can  be  no  implied  ratification 
of  an  unauthorized  act,  or,  at  least,  to  tie  up  the  possibility  of  ratifica- 
tion to  the  accident  of  prior  relations.  Neither  reason  nor  authority 
justifies  such  a  conclusion.  A  man  who  sees  what  has  been  done  In 
his  name  and  for  his  benefit,  even  by  an  intermeddler,  has  the  same 
power  to  ratify  and  confirm  It  that  he  would  have  to  make  a  similar 
contract  for  himself;  and,  If  the  power  to  ratify  be  conceded  to  him. 
the  fact  of  ratification  must  be  provable  by  the  ordinary  means. 
•  *  *  The  prior  relations  of  the  parties  lend  great  Importance  to 
the  fact  of  silence,  but  It  Is  a  mistake  to  make  the  competency  of 
the  fact  dependent  on  those  relations.  *  *  *  It  Is  one  thing  to 
Bay  that  the  law  will  not  Imply  a  ratification  from  silence,  and  a 
very  different  thing  to  say  that  silence  is  a  circumstance  from  which, 
with  others,  a  Jury  may  not  imply  It."  Philadelphia,  W.  &  B.  R. 
Co.  v.  Cowell,  28  Pa.  329,  70  Am.  Dec.  128. 


72  CREATION   OF   RELATION RATIFICATION.  (Cb.  3 

or  silence  of  the  party  sought  to  be  charged  as  principal 
would  be  likely  to  cause  injury  to  the  person  giving  credit 
to,  and  relying  upon,  such  assumed  agency,  or  to  induce  him 
to  believe  such  agency  did  in  fact  exist,  and  to  act  upon  such 
belief  to  his  detriment,  then  such  silence  or  inaction  may 
be  considered  as  a  ratification  of  the  agency."  *7 

Knovl<-'lge  of  Facts. 

Since  ratification  rests  upon  assent,  to  be  binding  it  must, 
as  a  ,ule,  be  made  with  full  knowledge  of  all  the  facts  neces- 
sary to  an  intelligent  exercise  of  the  right  of  election.  "No 
doctrine  is  better  settled  on  principle  or  authority  than  this, 
that  the  ratification  of  the  act  of  an  agent  previously  unau- 
thorized must,  in  order  to  bind  the  principal,  be  with  full 
knowledge  of  the  material  facts.  If  the  material  facts  are 
eilher  suppressed  or  unknown,  the  ratification  is  invalid,  be- 
cause founded  on  mistake  or  fraud."  *8  Hence,  if  the  prin- 
cipal has  ratified  upon  insufficient  knowledge,  he  may,  as  a 
rule,  after  he  is  informed  of  the  facts,  disaffirm.  Knowledge 
of  the  facts,  however,  is  sufficient;  knowledge  of  their  legal 
effect  is  not  requisite.*8 

47  Heyn  v.  O'Hagen,  60  Mich.  150,  26  N.  W.  861,  per  Morse,  J. 

<8  Owings  v.  Hull,  9  Pet.  (U.  S.)  607,  9  L.  Ed.  246,  per  Story,  J. 
See,  also,  Lewis  v.  Read,  13  M.  &  W.  834;  Freeman  v.  Kosher,  13  Q. 
B.  780;  The  Bonita  v.  The  Charlotte,  Lush.  252;  Gunn  v.  Roberts, 
L.  R.  9  C.  P.  331;  Bell  v.  Cunningham,  3  Pet.  (U.  S.)  69,  7  L.  Ed. 
606;  Bennecke  v.  Insurance  Co.,  105  U.  S.  355,  26  L.  Ed.  990;  Bosseau 
v.  O'Brien,  4  Biss.  (U.  S.)  395,  Fed.  Gas.  No.  1,667;  Combs  v.  Scott, 
12  Allen  (Mass.)  493;  Seymour  v.  Wyckoff,  10  N.  Y.  213;  Baldwin  v. 
Burrows,  47  N.  Y.  199;  Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am. 
Rep.  150;  Bannon  v.  Warfleld,  42  Md.  22;  Hardeman  v.  Ford,  12 
Ga.  205;  Manning  v.  Gasharie,  27  Ind.  399;  International  Bank  v. 
Ferris,  118  111.  465,  8  N.  E.  825;  TEtna  Ins.  Co.  v.  Iron  Co.,  21  Wis. 
458;  Holm  v.  Bennett,  43  Neb.  808,  62  N.  W.  194;  Bohart  v.  Oberne, 
36  Kan.  284,  13  Pac.  388;  Miller  v.  Board,  44  Cal.  166;  Cram  v. 
Sickel,  51  Neb.  828,  71  N.  W.  724,  66  Am.  St.  Rep.  478;  Hunt  v.  Agri- 
cultural Works,  69  Minn.  539,  72  N.  W.  813. 

48  Kelley  v.  H.  Railroad  Co.,  141  Mass.  496,  6  N.  E.  745;   Hyatt  v. 
Clark,  118  N.  Y.  563,  23  N.  E.  891;   Hillborry  v.  Hatton,  6  El.  &  B. 
868.     Hut  see  Dugan  v.  Lyman  (N.  J.  Sup.)  23  Atl.  657. 


§§  16-17)  KNOWLEDGE   OF  FACTS.  73 

Nevertheless,  it  is  within  the  power  of  the  principal,  if  he 
sees  fit,  to  ratify  without  full  knowledge.  "The  intention  to 
adopt  the  act  at  all  events  is  the  same  as  adopting  with 
knowledge."  80  If  he  deliberately  ratifies  upon  such  knowl- 
edge as  he  possesses,  without  caring  for  more,  intentionally 
assuming  the  risk  of  the  facts,  he  has  the  right  to  do  so,  and 
a  ratification  made  under  such  circumstances  is  binding.51 
But,  since  the  principal  is  under  no  obligation  to  ratify  an 
unauthorized  act,  it  is  for  the  person  who  relies  upon  a  ratifi- 
cation to  show  that  all  material  facts  were  made  known  to 
the  principal,  or  else  that  the  circumstances  were  such  as 
to  manifest  an  intention  on  his  part  to  ratify  at  all  events.62 
Nor  does  mere  negligence  or  omission  to  make  inquiries  nec- 
essarily manifest  an  intention  to  ratify,  or  necessarily  pre- 
clude the  principal  from  disaffirming  upon  subsequently 
learning  the  facts.68  Yet  while  failure  to  make  full  inquiry 
does  not  charge  the  principal,  as  matter  of  law,  with  knowl- 
edge of  what  an  inquiry  would  have  disclosed,  it  may  be 

•o  Freeman  v.  Kosher,  13  Q.  B.  780,  Patterson,  J. 

»i  Lewis  v.  Read,  13  M.  &  W.  834;  Phosphate  of  Lime  Co.  v. 
Green,  L.  R.  7  C.  P.  43;  Kelley  v.  Railroad  Co.,  141  Mass.  496,  6  N. 
E.  745;  Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188. 

62  Combs  v.  Scott,  12  Allen  (Mass.)  493;  Wheeler  v.  Sleigh  Co.  (C. 
C.)  39  Fed.  347;  Moore  v.  Ensley,  112  Ala.  228,  20  South.  744. 

03  Combs  v.  Scott,  12  Allen  (Mass.)  493. 

It  was  held  error  to  charge,  on  the  question  of  ratification,  that  if 
there  was  a  material  mistake  It  made  no  difference  how  it  arose,  or 
whether  the  principal  might  have  ascertained  the  contrary  to  be  truo. 
"unless  it  arose  from  the  negligence  of  the  principal."  Bigelow,  C. 
J.,  said:  "We  do  not  mean  to  say  that  a  person  can  be  willfully 
ignorant,  or  purposely  shut  bis  eyes  to  means  of  information  withiu 
his  possession  and  control,  and  thereby  escape  the  consequences  of 
a  ratification  of  unauthorized  acts  into  which  he  has  deliberately 
entered;  but  our  opinion  is  that  ratification  of  an  antecedent  act  of 
an  agent,  which  was  unauthorized,  cannot  be  held  valid  and  binding, 
where  the  person  sought  to  be  charged  has  misapprehended  or 
mistaken  material  facts,  although  he  may  have  wholly  omitted  to 
make  inquiries  of  other  persons  concerning  them,  and  his  ignorance 
and  misapprehension  might  have  been  enlightened  and  corrected  by 


74  CREATION  OF   RBLATIQN RATIFICATION.  (Oh.  8 

strong  evidence  of  an  intention  to  adopt  at  all  events.54 
Thus,  where  the  principal  accepts  the  benefits  of  an  unau- 
thorized contract  without  any  attempt  to  ascertain  its  terms, 
the  inference  is  strong,  and  may  be  conclusive,  that  he  in- 
tended to  take  the  risk  and  adopt  the  contract  upon  such 
knowledge  as  he  had.85  But  if  the  contract  was  such  as  the 
agent  was  authorized  to  make,  and  the  principal  had  no 
reason  to  suppose  that  the  agent  had  departed  from  his 
instructions,  the  fact  that  the  principal  accepted  the  benefits 
without  inquiry  would  be  no  evidence  of  intention  to  adopt  a 


the  use  of  diligence  on  his  part  to  ascertain  them.  The  mistake  at 
the  trial  consisted  in  the  assumption  that  any  such  diligence  was  re- 
quired of  the  defendants."  Murray  v.  Lumber  Co.,  143  Mass.  250, 
9  N.  E.  634. 

Ratification  of  the  unauthorized  execution  of  a  note  does  not  ratify 
stipulations  therein  to  pay  attorney's  fees  and  waive  exemptions,  un- 
less with  knowledge  of  such  stipulations.  Brown  v.  Bamberger,  110 
Ala.  342,  20  South.  114. 

The  principal  is  not  chargeable  with  information  which  his  means 
of  knowledge  disclosed,  if  not  willfully  ignorant.  Shepard  &  Morse 
Lumber  Co.  v.  Eldridge,  171  Mass.  516,  51  N.  E.  9,  41  L.  R.  A.  617, 
68  Am.  St.  Rep.  446.  But  see  Eadie  v.  Ashbaugh,  44  Iowa,  519. 

64  "With  respect  to  those  who  do  not  think  proper  to  seek  informa- 
tion, the  fact  that  they  did  not  choose  to  inquire  is  strong  evidence 
that  they  were  satisfied  to  adopt  the  acts  of  the  directors  at  all  events 
and  under  whatever  circumstances."  Phosphate  of  Lime  Co.  v. 
Green,  L.  R.  7  C.  P.  43,  Willes,  J.  See  Pope  v.  J.  K.  Armsby  Co.,  Ill 
Cal.  159,  43  Pac.  589. 

The  principal  cannot  escape  liability  by  purposely  closing  his  eyes. 
Lynch  v.  Smyth,  25  Colo.  103,  54  Pac.  634. 

so  Meehan  v.  Forrester,  52  N.  Y.  277;  The  Henrietta  (D.  C.)  91 
Fed.  675;  Busch  v.  Wilcox,  82  Mich.  336,  47  N.  W.  328,  21  Am.  St. 
Rep.  563;  State  Bank  v.  Kelly,  109  Iowa,  544,  80  N.  W.  520;  Glor  v. 
Kelly,  49  App.  Div.  617,  63  N.  Y.  Supp.  339. 

Where  a  principal,  knowing  that  an  unauthorized  lease  had  been 
made  in  his  behalf,  entered  into  possession  and  enjoyed  the  use  of 
the  premises  without  knowing  or  ascertaining  the  terms  of  the  lease, 
he  must  be  held  to  have  intended  to  ratify  the  lease,  whatever  it 
might  be.  Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188. 


§  18)  EFFECT   OF   RATIFICATION.  75 

contract  into  which  the  agent  had,  without  informing  his 
principal,  introduced  unauthorized  terms." 

EFFECT  OF  RATIFICATION. 

18.  The  effect  of  ratification  is  by  relation  to  invest  the  per- 
son on  -whose  behalf  the  act  ratified  was  done,  the  per- 
son who  did  the  act,  and  third  persons  with  the  same 
rights  and  duties  as  if  the  act  had  been  done  with  the 
previous  authority  of  the  person  ratifying. 

EXCEPTIONS:  (1)  INTERVENING  RIGHTS  OF  STRAN- 
GERS. Where  rights  of  strangers  have  become  vested 
between  the  time  of  performance  of  the  act  and  its 
ratification,  ratification  is  not  effective  to  divest  such 
rights. 

(2)  ACT    CREATING    RIGHT   AGAINST    THIRD    PERSON. 

In  some  cases,  where  the  act  is  such  that  it  would  if 
authorized  create  a  right  in  favor  of  the  principal  to 
have  some  act  performed  by  a  third  person,  so  that 
in  justice  he  is  entitled  to  know  whether  the  act  is 
authorized  before  being  bound  to  perform,  ratifica- 
tion is  not  effective  to  charge  such  third  person  by 
relation  with  the  duty  which  would  have  been  im- 
posed upon  him  had  the  act  been  authorized. 

(3)  CONTRACT— OTHER    PARTY.    Where    the    act   ratified 

is   a    contract— 

(a)  Some  courts  hold  (it  seems  erroneously)  that  ratifi- 
cation is  ineffective  to  bind  the  other  party  to  per- 
formance unless  he  subsequently  assents; 

(h)  Some  courts  hold  (it  seems  correctly)  that  ratifica- 
tion is  not  effective  to  bind  the  other  party  to  per- 
formance if  he  has  withdrawn  his  assent  before 
ratification. 

«•  Roberts  v.  Rumloy,  58  Iowa,  301,  12  N.  W.  323. 

Where  a  principal  authorized  an  agent  to  sell  stock,  expressly  re- 
serving the  right  to  a  dividend,  and  the  agent  sold,  agreeing  that  the 
dividend  should  go  with  the  stock,  and  the  owner  received  the  exact 
amount  for  which  he  had  authorized  the  stock  to  be  sold,  without 
knowledge  of  the  agreement,  retaining  the  proceeds  was  not  a  ratifi- 
cation. Wheeler  v.  Sleigh  Co.  (C.  C.)  39  Fed.  347.  See,  also,  Long 
T.  Poth,  1G  Misc.  Rep.  85,  37  N.  Y.  Supp.  670. 


76  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

(4)  LIABILITY  OF  AGENT.  In  some  cases  ratification  is 
not  effective  to  relieve  the  agent  from  liability  to  the 
principal  for  performance  of  an  unauthorized  act. 

Ratification  Irrevocable. 

An  election  to  ratify  once  made  is  irrevocable.1  If  the 
principal  adopts  the  act  for  a  moment  he  is  bound.2  This 
statement  is,  of  course,  subject  to  the  qualification  that  the 
ratification  must  be  made  with  knowledge  of  the  facts,  or 
else  must  be  made  with  the  intention  to  ratify  whatever  the 
facts  may  be;  for  otherwise  the  principal  may  disavow  the 
ratification  upon  being  informed  of  the  facts.8 

Doctrine  of  Relation. 

By  the  doctrine  of  relation,  the  principal,  the  agent,  and 
the  person  with  whom  the  agent  dealt  are,  upon  ratifica- 
tion, as  a  rule,  invested  with  the  same  rights  and  duties  as 
if  the  act  ratified  had  been  authorized.  "Omnis  ratihabitio 
retro  trahitur  et  mandate  sequiparatur."  Yet  while  it  is  the 
rule  that  ratification  relates  back  and  is  equivalent  to  previ- 
ous authority,  there  are  many  cases  in  which  ratification 
is  in  fact  far  from  being  equivalent  to  previous  authority, 
and  in  which  a  strict  application  of  the  doctrine  of  relation 
would  lead  to  absurd  and  unjust  results.  To  apply  the  doc- 
trine in  such  cases  would  be  to  adhere  to  a  legal  fiction 
at  the  expense  of  facts  and  plain  justice,  and  the  law  accord- 
ingly recognizes  many  exceptions  to  the  rule.4  These  ex- 
ceptions may  properly  be  dealt  with  in  treating  of  the  effect 
of  ratification,  for  the  question  is  not  what  acts  are  capable 
of  ratification,  but,  rather,  what  are  the  limitations  upon 
the  doctrine  of  relation  in  its  effect  upon  the  rights  and 
duties  of  the  different  persons  concerned,  when  ratification 
actually  takes  place.5 

§  18.  i  Smith  v.  Cologan,  2  T.  R.  188.  note;  Jones  v.  Atkinson,  68 
Ala.  167;  Brock  v.  Jones,  16  Tex.  463;  Sanders  v.  Peck,  30  C.  C.  A. 
530,  87  Fed.  61.  As  to  ratification  after  disapproval,  ante,  p.  62. 

a  Smith  v.  Cologan,  2  Term   R.  188,  note.  »  Ante,  p.  61. 

«  9  Harv.  Law  Rev.  60;   5  Harv.  Law  Rev.  19.  »  Post,  p.  77. 


§  18)  EFFECT   OF   RATIFICATION.  77 

Effect  of  Ratification — Intervening  Rights  of  Strangers. 

An  obvious  limitation  upon  the  doctrine  of  relation  is  that 
it  cannot  be  allowed  to  defeat  rights  of  strangers  which  have 
accrued  between  the  act  and  the  ratification.*  Thus  the  prin- 
cipal cannot,  by  ratifying  an  unauthorized  contract  of  sale, 
defeat  an  intermediate  sale  of  the  property  made  by  him- 
self,7 or  defeat  intervening  liens  acquired  by  attachment  or 
judgment  upon  the  property.8  So,  where  an  unauthorized 
notice  of  stoppage  in  transitu  was  given,  and  afterwards  the 
transitus  was  terminated  by  demand  for  the  goods  made 
by  the  assignees  in  bankruptcy  of  the  consignee  upon  and 
refusal  of  the  carrier  to  deliver  the  goods,  which  the  car- 
rier delivered  to  the  consignor's  assumed  agents,  it  was 
held  that  the  consignor's  subsequent  ratification  of  what 
had  been  done  on  his  behalf  was  inoperative  to  defeat  the 
right  of  property  in  the  goods,  which  upon  termination  of 
the  transitus  had  become  vested  in  the  assignees  in  bank- 
ruptcy. "In  some  cases,"  said  Rolfe,  B.,  "where  an  act 
which,  if  authorized,  would  amount  to  a  trespass,  has  been 
done  in  the  name  and  on  behalf  of  another,  but  without 

•  Lord  Audley  v.  Pollard,  Cro.  Eliz.  561;  Donnelly  v.  Popham,  1 
Taunt.  1;  Bird  v.  Brown,  4  Ex.  786;  Lyell  v.  Kennedy,  18  Q.  B.  D. 
796;  Cook  v.  Tullis,  16  Wall.  (U.  S.)  332,  21  L.  Ed.  933;  McCracken 
v.  City  of  San  Francisco,  16  Cal.  624;  Wood  v.  McCain,  7  Ala.  800. 
42  Am.  Dec.  612;  Pollock  v.  Cohen,  32  Ohio  SL  514;  McMahan  v. 
McMahan,  13  Pa.  376,  53  Am.  Dec.  481;  Stoddart's  Case,  4  Ct  Cl. 
(U.  S.)  511;  Clendenning  v.  Hawk,  10  N.  D.  90,  86  N.  W.  114;  Gra- 
ham v.  Williams,  114  Ga.  716,  40  S.  E.  790. 

T  Parmelee  v.  Simpson,  5  Wall.  (TJ.  S.)  81,  18  L.  Ed.  542;  Mc- 
Cracken v.  City  of  San  Francisco,  16  Cal.  624;  McDonald  v.  McCoy. 
121  Cal.  55.  53  Pac.  421. 

«  Wood  v.  McCain,  7  Ala.  806,  42  Am.  Dec.  612;  Taylor  v.  Robin- 
son, 14  Cal.  396;  Pollock  v.  Cohen,  32  Ohio  St  514;  Norton  v.  Bank. 
102  Ala.  420,  14  South.  872;  Simon  v.  Association,  54  Ark.  58,  14  S. 
W.  1101. 

Where  an  agent  to  collect  an  account  takes  a  deed  of  land  there- 
for without  authority,  and  after  recording,  but  before  ratification, 
the  land  is  attached  by  another  creditor,  his  rights  are  not  defeated 
by  the  ratification.  Kempner  v.  Rosenthal.  81  Tex.  12,  16  S.  W.  639. 


78  CREATION  OF   RELATION RATIFICATION.  (Ch.  3 

previous  authority,  the  subsequent  ratification  may  enable 
the  party  on  whose  behalf  the  act  was  done  to  take  ad- 
vantage of  it,  and  treat  it  as  having  been  done  by  his  di- 
rection. But  this  doctrine  must  be  taken  with  the  qualifica- 
tion that  the  act  of  ratification  must  take  place  at  a  time, 
and  under  circumstances,  when  the  ratifying  party  might 
have  lawfully  done  the  act  which  he  ratifies.  *  *  *  The 
stoppage  could  only  be  made  during  the  transitus.  During 
that  period  the  defendants,  without  authority  from  Illins 
[the  consignor],  made  the  stoppage.  After  the  transitus  was 
ended,  but  not  before,  Illins  ratified  what  the  defendants 
had  done.  From  that  time  the  stoppage  was  the  act  of  Il- 
lins, but  it  was  then  too  late  for  him  to  stop.  The  goods 
had  already  become  the  property  of  the  plaintiffs,  free  from 
all  right  of  stoppage."  9 

li  does  not  follow,  however,  that  the  ratification,  although 
its  effect  is  thus  partially  defeated  by  the  intervention  of  su- 
perior rights,  is  totally  inoperative.  Thus,  in  the  last  case, 
the  stoppage  by  ratification  became  the  act  of  the  consignor, 
and  he  might  consequently  have  been  held  liable  for  the 
conversion.  Nor  upon  principle  is  there  any  reason  why  one 
who  sees  fit  to  ratify  an  unauthorized  contract  of  sale,  al- 
though he  has  in  the  meantime  conveyed  the  property  to  a 
stranger,  cannot  be  held  to  respond  in  damages  to  the  other 
party  to  the  contract,  or  can  avoid  the  obligation  to  indem- 
nify and  compensate  the  agent.10 

Same — Between  Principal  and  Third  Party. 

The  transaction  ratified  may  be  a  mere  act  or  it  may  be  a 
contract.  In  both  cases  the  doctrine  of  relation  applies  with- 
out exception,  so  far  as  concerns  the  binding  force  of  the 
ratification  upon  the  principal.  In  its  effect  upon  the  obliga- 
tions of  the  other  party,  however,  the  doctrine  of  relation 
is  not  universally  applicable.11 

•  Bird  v.  Brown,  4  Ex.  786. 

»o  See  Lyell  v.  Kennedy,  14  App.  Cas.  437. 

11  Story,  Ag.  §  245. 


§  18)  EFFECT  OF  RATIFICATION.  79 

(a)  Acts  Other  Than  Contracts.  Where  an  unauthorized 
act  is  of  such  a  nature  that  it  would,  if  authorized,  create 
a  right  in  favor  of  the  principal  to  have  some  act  performed 
by  a  third  person,  the  performance  of  which,  in  the  absence 
of  authority  on  the  part  of  the  assumed  agent,  would  be 
unnecessary,  it  is  manifestly  unjust  to  give  to  ratification  the 
effect  of  previous  authority,  so  as  to  subject  the  third  person, 
if  he  fails  to  perform,  to  the  consequences  which  would  have 
resulted  from  nonperformance  had  the  act  of  the  assumed 
agent  been  authorized;12  for  the  third  person,  being  ig- 
norant whether  the  act  will  be  ratified,  is  obliged  to  perform 
at  his  own  risk,  and  will  be  without  protection  if  the  prin- 
cipal disavows  the  act.  The  courts  have  frequently  recog- 
nized an  exception  to  the  doctrine  of  relation  in  such  cases, 
although  the  exception  is  not  clearly  defined  or  universally 
recognized.18  Thus,  it  has  been  held  that  an  unauthorized 

12  "On  the  other  hand,  if  the  act  done  by  such  person  would,  if 
authorized,  create  a  right  to  have  some  act  or  duty  performed  by  a 
third  person,  so  as  to  subject  him  to  damages  or  losses,  for  the  non- 
performance  of  that  act  or  duty,  or  would  defeat  a  right  or  an  estate 
already  vested  in  the  latter,  there  the  subsequent  ratification  or 
adoption  of  the  unauthorized  act  by  the  principal  will  not  give  valid- 
ity to  it,  so  as  to  bind  the  third  person  to  the  consequences."  Story. 
Ag.  §  246.  See  5  Harv.  Law  Rev.  19;  9  Harv.  Law  Rev.  60; 
Wright,  Prin.  &  Ag.  49. 

ia  Mr.  Wharton  suggests  the  uncertain  test  of  "moral"  certainty. 
**In  all  cases  in  which  it  is  morally  sure  the  principal  will  ratify, 
other  parties  are  bound  to  treat  the  intervener— the  negotiorum  gestor 
—as  an  agent.  In  cases  where  the  ratification  of  the  principal  may 
be  regarded  as  doubtful,  the  intervener  may  be  treated  as  a  mere 
Interloper."  Wharton,  Ag.  §  80.  This  distinction  is  approved  in  Far- 
mers' Loan  &  Trust  Co.  v.  Railroad  Co.  (C.  C.)  83  Fed.  870,  in 
which  case  the  facts  were  as  follows:  Under  a  provision  in  a  rail- 
road mortgage  that,  on  default  in  payment  of  any  installment  of 
Interest,  continuing  for  60  days,  the  holders  of  one- third  in  amount 
of  the  bonds  secured  might  declare  the  principal  due,  by  an  instru- 
ment executed  by  them  "or  their  attorneys  in  fact  thereto  duly  au- 
thorized," and  delivered  to  the  trustee,  such  a  declaration  of  ma- 
turity was  signed 'by  a  person  as  attorney  in  fact  of  his  wife  and 
two  brothers,  who  were  bondholders.  He  had  no  written  authority, 


80  CREATION  OF  RELATION RATIFICATION.  (Gil.  3 

notice  to  quit  does  not  become  binding  upon  a  tenant  by 
ratification,14  at  least  if  he  fails  to  act  upon  it.15  "A  rati- 
fication given  afterwards  will  not  do  in  his  case,"  said  Lord 
Ellenborough  in  Right  v.  Cuthell,16  "because  the  tenant  was 
entitled  to  such  notice  as  he  could  act  upon  with  certainty  at 
the  time  it  was  given ;  and  he  was  not  bound  to  submit  him- 
self to  the  hazard  whether  the  third  coexecutor  chose  to 
ratify  the  act  of  his  companions  or  not."  And  Lawrence, 
J.,  said  in  the  same  case:  "The  rule  of  law,  that  omnis 
ratihabitio  retro  trahitur,  etc.,  seems  only  applicable  to  cases 
where  the  conduct  of  the  parties  on  whom  it  is  to  operate, 
not  being  referable  to  any  agreement,  cannot  in  the  mean- 
time depend  on  whether  there  be  a  subsequent  ratification." 
So,  it  seems,  an  unauthorized  demand,  though  ratified,  will 
not  support  an  action,  for  the  other  party  has  a  right  to 
know  whether  he  may  safely  pay  or  deliver  to  the  person 
making  demand.17  On  the  other  hand,  it  has  been  held 
that  the  bringing  of  an  action  may  be  subsequently  ratified 

but  an  instrument  ratifying  his  act  was  executed  by  the  persons  for 
whom  he  acted  after  the  filing  of  a  bill  of  foreclosure  by  the  trustees. 
Held,  that  such  ratification  rendered  effective  the  act  of  the  attorney 
as  against  the  mortgagor  and  a  second  mortgagee.  Lurton,  J.,  after 
referring  to  Mr.  Wharton's  distinction,  said:  "Applying  this  to  the 
defendants,  they  must  be  regarded  as  bound  by  the  ratification, 
which  in  view  of  the  relationship  borne  by  D.  Willis  James  to  those 
he  assumed  to  represent,  and  the  obvious  interest  they  have  in  rati- 
fying what  he  did,  can  be  no  surprise  to  them."  See  Johnson  v. 
Johnson  (C.  C.)  31  Fed.  700,  702. 

i*  Right  v.  Cuthell,  5  East,  491;  Doe  v.  Walters,  10  B.  &  C.  626; 
Doe  v.  Goldwin,  2  Q.  B.  143;  Brahn  v.  Forge  Co.,  38  N.  J.  Law, 
74;  Pickard  v.  Perley,  45  N.  H.  188,  86  Am.  Dec.  153.  Contra:  Roe 
v.  Pierce,  2  Camp.  96;  Goodtitle  v.  Woodward,  3  B.  &  Aid.  689. 

IB  in  cases  which  would  otherwise  fall  within  this  exception,  if 
the  third  person  recognizes  the  assumed  authority,  clearly  the  reason 
for  denying  full  effect  to  a  subsequent  ratification  fails. 

ie  5  East,  491. 

if  Solomons  v.  Dawes,  1  Esp.  83;  Coore  v.  Galloway,  1  Esp.  115: 
Coles  v.  Bell,  1  Camp.  478,  note;  Story,  Ag.  §  247. 

But  it  has  been  held  that  bringing  suit  founded  on  an  unauthorized 


§  18)  EFFECT  OF  RATIFICATION.  81 

by  the  party  on  whose  behalf  it  is  brought,18  although  some 
courts,  with  what  appears  to  be  the  better  reason,  have 
held  that  the  principal  cannot,  by  ratification,  take  away 
from  the  defendant  a  defense  which  he  had  at  the  com- 
mencement of  the  action.19 

(b)  Contracts.  The  effect  of  ratification  of  a  contract  is  to 
invest  the  principal  with  all  the  obligations  of  an  original 

demand  is  a  ratification,  and  that  the  demand  is  sufficient  unless 
the  authority  to  make  it  was  brought  in  question  by  the  party  sought 
to  be  charged  at  the  time.  Ham  v.  Boody,  20  N.  H.  411,  51  Am. 
Dec.  235;  Payne  v.  Smith,  12  N.  H.  34;  Town  of  Grafton  v.  Follans- 
bee,  16  N.  H.  450,  41  Am.  Dec.  736.  Notice  of  dishonor  of  a  bill  or 
note  by  a  stranger,  though  ratified,  does  not  bind  a  drawer  or  In- 
dorser.  Stewart  v.  Kennett,  2  Camp.  177;  Chanoine  v.  Fowler,  3 
Wend.  (N.  Y.)  173. 

is  Ancona  v.  Marks,  7  H.  &  N.  686;  Marr  v.  Plummer,  3  Greenl. 
(Me.)  73;  Persons  v.  McKibben,  5  Ind.  261,  61  Am.  Dec.  85.  See. 
also,  Farmers'  Loan  &  Trust  Co.  v.  Railroad  Co.  (C.  C.)  83  Fed.  870. 

Where  the  bolder  of  a  bill  indorsed  it,  and  delivered  it  to  a  so- 
licitor, who  at  his  request  brought  suit  on  it  in  the  name  of  Ancona. 
It  was  held  that  his  ratification  after  suit  begun  entitled  him  to 
maintain  the  action.  Ancona  v.  Marks,  supra. 

i»  Wittenbrock  v.  Bellmer,  57  Cal.  12;  Dlngley  v.  McDonald,  124 
Cal.  682,  57  Pac.  574. 

Where  an  agent  without  authority  paid  plaintiff  a  debt  due  him 
from  defendant  out  of  moneys  of  defendant,  but  defendant  repudi- 
ated the  payment,  and  plaintiff  sued  on  the  debt,  a  ratification,  after 
suit  brought,  could  not  operate  retroactively,  so  as  to  defeat  the  ac- 
tion. Fiske  v.  Holmes,  41  Me.  441. 

Code  Prac.  Ky.  §  550,  providing  that,  In  the  absence  of  the  plain- 
tiff, the  affidavit  required  by  the  statute  for  a  writ  of  attachment 
may  be  made  by  his  agent  or  attorney,  intends  an  existing  rela- 
tion at  the  time  the  affidavit  is  filed,  and  ratification  subsequent  to 
Issuance  of  the  writ  will  not  sustain  it.  Johnson  v.  Johnson  (C.  C.) 
81  Fed.  700. 

Ratification  of  unauthorized  signing  of  plaintiff's  name  to  an  at- 
tachment bond  does  not  relate  back  so  as  to  sustain  the  attachment. 
Grove  v.  Harvey,  12  Rob.  (La.)  221.  Contra:  Dove  v.  Martin,  23 
Miss.  588;  Bank  of  Augusta  v.  Courey,  28  Miss.  667;  Mandel  v. 
Peet,  j.8  Ark.  236. 

TIFF.P.&  A.— 6 


&i  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

party  to  it.20  The  third  party  may  enforce  the  contract,  and 
has  all  the  incidental  rights  that  he  would  possess  had  the 
person  actually  dealing  with  him  been  the  principal  himself. 
If,  for  example,  the  agent  induced  the  third  party  to  sell  by 
means  of  false  representations,  the  seller  has  the  same  right 
to  rescind  or  to  affirm,  and  otherwise  to  hold  the  principal 
answerable  for  the  fraud,  that  he  would  have  possessed 
against  the  principal  acting  in  person.21 

By  a  reasonable  application  of  the  doctrine  of  ratification 
it  should  follow  that,  upon  the  election  of  the  principal  to 
adopt  a  contract  made  on  his  behalf,  the  third  party  becomes 
bound  for  its  performance.  The  authorities  are  not  agreed, 
however,  'upon  this  proposition,  and  some  cases  have  held 
that  since  mutual  assent  is  essential  to  a  contract  it  cannot 
rest  with  the  party  ratifying  to  bind  the  other  party  to  an 
executory  contract,  and  that  he  can  be  bound  only  by  some 
act  signifying  his  present  consent  to  be  bound.22  "The  prin- 
cipal in  such  case  may,"  said  Dixon,  C.  J.,  in  the  leading 
case  maintaining  the  negative  of  the  proposition,28  "by  his 
subsequent  assent,  bind  himself;  but  if  the  contract  be  ex- 
ecutory, he  cannot  bind  the  other  party.  The  latter  may, 
if  he  choose,  avail  himself  of  such  assent  against  the  prin- 


ao  Fleckner  v.  Bank  of  United  States,  8  Wheat.  (U.  S.)  338,  5  L. 
Ed.  631;  Bronson  v.  Chappell,  12  Wall.  (U.  S.)  681,  20  L.  Ed.  436; 
Starks  v.  Sikes,  8  Gray  (Mass.)  609,  69  Am.  Dec.  270;  Lawrence  v. 
Taylor,  5  Hill  (N.  Y.)  107;  Hankins  v.  Baker,  46  N.  Y.  666;  United 
States  Express  Co.  v.  Rawson,  106  Ind.  215,  6  N.  B.  337. 

21  Elwell  v.  Chamberlin,  31  N.  Y.  611;    Smith  v.  Tracy,  36  N.  Y. 
79;   Fairchild  v.  McMahon,  139  N.  Y.  290,  34  N.  E.  779,  36  Am.  St. 
Eep.  701;   Lane  v.  Black,  21  W.  Va.  619;   post,  pp.  229,  275  et  seq. 

22  Dodge  v.  Hopkins,  14  Wis.  630;   Atlee  v.  Bartholomew,  69  Wis. 
43,  33  N.  W.  110,  5  Am.  St  Rep.  103.     Of.  Townsend  v.  Corning,  23 
Wend.  (N.  Y.)  435. 

This  doctrine  is  supported  by  Mr.  Mechem  in  his  work  on  Agency 
(section  179),  and  in  24  Am.  Law  Rev.  580.  It  is  adversely  criticised 
in  Atlee  v.  Bartholomew,  5  Am.  St.  Rep.  113,  note  (s.  c.  69  Wis.  43, 
83  N.  W.  110);  25  Am.  Law  Rev.  74;  9  Harv.  Law  Rev.  60. 

as  Dodge  v.  Hopkins,  14  Wis.  630. 


§  18)  EFFECT  OF  RATIFICATION.  83 

cipal,  which,  if  he  does,  the  contract,  by  virtue  of  such  mutual 
ratification,  becomes  mutually  obligatory."  The  fallacy  of 
this  reasoning,  it  is  submitted,  lies  in  applying  to  the  anom- 
alous doctrine  of  ratification  the  test  of  mutual  assent.  Un- 
doubtedly, a  contract  which  requires  ratification,  like  other 
contracts,  must  rest  on  mutual  assent.  But  in  the  case  un- 
der consideration  the  assent  of  the  other  party  is  given  in 
advance.  It  is  true  that  until  ratification  the  contract  is 
not  binding  because  of  the  absence  of  assent  on  the  part 
of  the  assumed  principal,  but  by  ratifying  the  contract  he 
assents  to  it,  and  the  assent  then  becomes  mutual  and  the 
contract  by  relation  mutually  binding  as  of  the  date  it  was 
entered  into  by  the  assumed  agent.2* 

*<  McClintock  v.  Oil  Co.,  146  Pa.  144,  23  All.  211,  28  Am.  St.  Rep. 
785;  post,  p.  85. 

In  Hagedorn  v.  Oliverson,  13  East,  274,  where  plaintiff,  without 
authority,  procured  an  insurance  upon  a  ship  for  the  benefit  of  the 
owner,  who  ratified  after  a  loss  had  occurred  and  was  known,  It  was 
held  that  an  action  was  maintainable  on  the  policy  for  his  benefit. 
See,  also,  Routh  v.  Thompson,  13  East,  274;  Finney  v.  Insurance 
Co.,  5  Mete.  (Mass.)  192.  38  Am.  Dec.  397;  Stillwell  v.  Staples,  19  N. 
Y.  401;  Williams  v.  North  China  Ins.  Co.,  1  C.  P.  D.  757. 

These  cases  are  exceptional,  in  that  they  give  full  effect  to  th*» 
ratification  notwithstanding  that  the  principal  would  not  then  be 
able  to  make  the  same  contract  as  that  ratified.  In  Williams  v. 
North  China  Ins.  Co.,  supra,  the  rule  which  they  establish  with 
regard  to  marine  Insurance  was  sustained  by  Cockburn,  C.  J.,  both 
on  the  ground  of  stare  decisis,  and  as  a  legitimate  exception  from 
the  general  rule,  because  "where  an  agent  effects  an  insurance  sub- 
ject to  ratification  the  loss  insured  against  is  very  likely  to  happen 
before  ratification,  and  It  must  be  taken  that  the  Insurance  so  ef- 
fected Involves  that  possibility  as  the  basis  of  the  contract"  See, 
also,  Story,  Ag.  §  248;  Wharton,  Ag.  §  81. 

But  where  a  life  insurance  policy  expressly  provided  that  It  should 
not  take  effect  until  the  advance  premium  should  have  been  paid 
during  the  lifetime  of  the  insured,  it  was  held  that  an  unauthorized 
payment  of  the  premium  during  his  life  could  not  be  ratified  by  his 
administrator.  Whiting  v.  Insurance  Co.,  129  Mass.  240,  37  Am. 
Rep.  317.  Cf.  Dibbins  v.  Dibbins  [1896]  2  Ch.  348. 


84  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

Same— Withdrawal  of  Other  Party  before  Ratification. 

A  question  closely  connected  with  that  discussed  in  the 
last  paragraph  is  whether  the  other  party  to  an  unauthor- 
ized contract  may  withdraw  from  it  before  ratification.  In 
jurisdictions  where  it  is  held  that  the  assent  of  the  other  party 
to  be  bound  by  the  contract,  even  after  ratification,  is  req- 
uisite, the  question  is,  of  course,  answered  in  the  affirma- 
tive.25 In  England,  on  the  other  hand,  the  doctrine  of  rela- 
tion has  recently  been  pushed  to  an  extreme  limit,  and  it  has 
been  held  that  ratification  by  the  assumed  principal  is  ef- 
fective to  bind  the  other  party  to  the  contract  notwith- 
standing that  he  has  in  the  meantime  withdrawn  his  assent. 
Thus,  where  an  offer  was  accepted  without  authority  by  the 
managing  director  of  a  company  on  its  behalf,  and  before 
ratification  the  other  party  gave  notice  that  he  withdrew 
his  offer,  it  was  held  that  the  subsequent  ratification  related 
back  to  the  time  of  acceptance,  and  rendered  the  withdrawal 
inoperative.  Lindley,  C.  J.,  said :  "I  can  find  no  authority  in 
the  books  to  warrant  the  contention  that  an  offer  made, 
and  in  fact  accepted  by  a  principal  through  an  agent  or 
otherwise,  can  be  withdrawn.  The  true  view,  on  the  con- 
trary, appears  to  be  that  the  doctrine  as  to  the  retrospective 
action  of  ratification  is  applicable.  If  we  look  to  Mr.  Brice's 
argument  closely,  it  will  be  found  to  turn  on  this — that 
the  acceptance  was  a  nullity,  and,  unless  we  are  prepared 
to  say  that  the  acceptance  of  the  agent  was  absolutely  a 
nullity,  Mr.  Brice's  contention  cannot  be  accepted.  *  *  * 
I  see  no  reason  to  take  this  case  out  of  the  application  of  the 
general  principle  as  to  ratification."  2e  The  effect  of  this 
decision  is  that  between  the  time  of  the  unauthorized  con- 

2B  Ante,  p.  82. 

as  Bolton  Partners  v.  Lambert  [1889]  41  Ch.  D.  295.  This  case 
has  been  adversely  criticised.  See  Wright,  Prin.  &  Ag.  51;  Bow- 
stead,  Ag.  41;  Campbell,  Sale  of  Goods  &  Com.  Ag.  238;  Foy,  Spec. 
Perf.  (3d  Ed.)  711;  Huffcut,  Ag.  §  38;  5  Law  Q.  Rev.  440;  9  Harv. 
Law  Rev.  60. 

But  it  was  followed  in  Re  Portuguese  Consolidated  Copper  Mines, 


§  18)  EFFECT   OF   RATIFICATION.  85 

tract  and  its  ratification  the  other  party  is  contingently 
bound,  although  the  principal  is  not  bound.27  It  seems  pos- 
sible, however,  to  give  effect  to  the  principle  as  to  ratifica- 
tion without  doing  violence  to  the  principle  requiring  con- 
tracts to  be  based  on  mutual  assent,  by  holding  that  the 
ratification  is  not  effective  to  make  the  contract  binding  upon 
the  other  party  if  he  has  in  the  meantime  withdrawn  his 
assent,28  but  that  unless  it  be  withdrawn,  being  an  assent 
to  what  purports  to  be  a  contract  and  not  in  form  a  mere 
offer,  the  assent  continues,  the  contract  thus  becoming  bind- 
ing upon  ratification  by  mutual  assent.2' 

45  Ch.  D.  16,  and  in  Re  Tiedemann  &  Ledermann  Frere  [1899]  2  Q. 
B.  66.  See,  also,  Andrews  v.  Insurance  Co.,  92  N.  Y.  596,  604. 

But  acceptance  by  an  agent,  acting  without  authority,  of  an  option 
of  purchase,  which  has  to  be  exercised  within  a  limited  time,  is  not 
made  effective  by  ratification  after  the  time  has  expired.  Dibbins 
v.  Dibbins  [1896]  2  Ch.  348. 

"  "It  comes  to  this,  that  if  an  offer  to  purchase  Is  made  to  a 
person  who  professes  to  be  the  agent  for  a  principal,  but  who  bas 
no  authority  to  accept  it,  the  person  making  the  offer  will  be  in  a 
worse  position  as  regards  withdrawing  it  than  if  it  had  been  made  to 
the  principal;  and  the  acceptance  of  the  unauthorized  agent  in  the 
meantime  will  bind  the  purchaser  to  his  principal,  but  it  will  not 
in  any  way  bind  the  principal  to  the  purchaser."  In  re  Portuguese 
Consolidated  Copper  Mines,  45  Ch.  Div.  16,  per  North,  J. 

28  This  view  finds  support,  even  in  England,  in  the  earlier  case 
of  Walter  v.  James,  L.  R.  6  Ex.  124  [1891].  In  that  case  an  agent 
after  revocation  of  his  authority,  paid  money  on  behalf  of  his  prin- 
cipal to  a  creditor,  who  afterwards  returned  it  to  the  agent  at  his 
request.  In  an  action  by  the  creditor  against  the  principal  to  re- 
cover his  debt  the  defendant  pleaded  payment,  but  it  was  held  that 
It  was  competent  for  the  assumed  agent  and  the  third  party  to  cancel 
the  transaction,  and  that  consequently  the  ratification  by  plea  of  pay- 
ment was  too  late.  But  If  the  third  party  may  withdraw  his  assent 
before  ratification,  with  consent  of  the  agent,  who  obviously  has  no 
power  to  cancel  the  transaction,  it  follows  that  he  may  withdraw 
bis  assent  by  communicating  his  withdrawal  to  the  principal,  irre- 
spective of  the  agent's  consent. 

2»  A  person  having  entered  into  a  contract  with  plaintiff,  a  mar- 
ried woman,  to  sell  land  to  her,  her  husband,  assuming  to  act  as 
her  agent,  sold  the  contract  to  defendant,  Indorsing  thereon  at  his 


86  CREATION  OF  RELATION RATIFICATION.  (Oh.  3 

Same — Between  Principal  and  Agent. 

By  the  doctrine  of  relation,  ratification  invests  both  prin- 
cipal and  agent,  as  a  rule,  with  the  same  rights  and  duties 
as  if  the  transaction  had  been  previously  authorized.  If  the 
principal  elects  to  ratify,  he  assumes  the  burdens  that  are 
incidental  to  adoption  of  the  agent's  act.  Hence  the  agent 
may  look  to  the  principal  for  compensation  80  and  indem- 
nity.81 And  by  the  ratification  the  principal  ordinarily  ab- 

request  a  memorandum  of  the  terms  of  sale.  On  the  day  for  pay- 
ment defendant  indorsed  on  the  contract  an  assignment  by  husband 
and  wife,  which  they  executed,  but  defendant  refused  to  accept  the 
assignment.  In  an  action  to  recover  the  price,  it  was  held  that  sign- 
ing the  assignment  was  a  ratification  by  plaintiff,  and  that  it  became 
binding  without  acceptance  by  defendant.  Mitchell,  J.,  said:  "The 
objection  of  want  of  mutuality  is  not  good  in  many  cases  of  dealing 
with  an  agent,  for  if  he  exceeds  his  authority,  actual  and  apparent, 
his  principal  will  not  be  bound,  yet  may  ratify,  and  then  the  other 
party  will  be  bound  from  the  inception  of  the  agreement.  The  ag- 
gregatio  mentium  of  the  parties  need  not  commence  simultaneously. 
It  must  coexist,  but  there  must  be  a  period  when  the  question  of 
contract  or  no  contract  rests  on  the  will  of  one  party  to  accept  or 
reject  a  proposition  made,  and  this  interval  may  be  long  or  short. 
The  offer,  of  course,  may  be  revoked  or  withdrawn  at  any  time  prior 
to  acceptance,  but  after  acceptance  It  is  too  late."  McClintock  v.  Oil 
Co.,  146  Pa.  144,  23  Atl.  211,  28  Am.  St.  Kep.  785. 

For  an  Me  discussion  of  this  vexed  question,  see  "A  Problem  as 
to  Ratification,"  by  Prof.  Wambaugh,  9  Harv.  Law  Rev.  60. 

so  Wilson  v.  Dame,  58  N.  H.  392;  Goss  v.  Stevens,  32  Minn.  472, 
21  N.  W.  549;  United  States  Mortg.  Co.  v.  Henderson,  111  Ind.  24, 
12  N.  E.  88. 

Where  the  managing  owner  of  a  ship  sold  her  through  his  agent, 
and  his  co-owners  ratified  the  sale,  they  were  jointly  liable  to  the 
agent  for  his  commission.  Keay  v.  Fenwick,  1  C.  P.  D.  745. 

Where  a  real  estate  agent  departs  from  his  authority  in  effecting 
a  sale,  upon  ratification  the  compensation  fixed  in  the  original  con- 
tract of  employment  controls.  Gelatt  v.  Ridge,  117  Mo.  553,  23  S. 
W.  882,  38  Am.  St.  Rep.  683. 

si  Cornwall  v.  Wilson,  1  Ves.  510. 

Where  an  agent  defended  an  action  brought  against  him  for  breach 
of  a  contract  entered  into  by  him  on  behalf  of  his  principal,  who  rati- 
fied what  had  been  done,  it  was  held  that  he  must  indemnify  the 


§  18)  EFFECT   OF   RATIFICATION.  87 

solves  the  agent  from  all  responsibility  on  account  of  the 
unauthorized  transaction,  whether  he  was  an  agent  who  ex- 
ceeded or  departed  from  his  instructions  or  a  mere  volun- 
teer." The  ratification  must,  of  course,  be  made  with 
knowledge  of  the  material  facts ;  for  othenvise  it  will  not  be 
binding,88  whether  the  want  of  knowledge  arose  from  cqp- 
cealment  or  misrepresentation  of  the  agent  or  from  his  mere 
innocent  inadvertence.84  It  has  been  held,  however,  that  an 
adoption  of  an  agent's  unauthorized  act  in  order  to  make 
the  loss  as  small  as  possible  is  not  such  a  ratification  as  will 
relieve  the  agent;85  in  other  words,  that  in  such  a  case 
the  law  will  not  apply  the  doctrine  of  relation  for  the  benefit 
of  an  agent  who  has  placed  the  principal  in  a  position  where 
he  is  forced  to  ratify  to  reduce  his  loss.  And  where  an  agent 
for  collection,  who  was  instructed  to  femit  by  express,  pur- 
chased a  check  drawn  on  parties  in  good  standing  in  New 
York,  and  forwarded  it  to  his  principal,  who  sent  it  to  New 
York  for  collection,  but  before  it  was  presented  the  drawers 
became  insolvent,  and  the  check  was  dishonored,  it  was  held 
that  sending  the  check  for  collection  was  not  such  a  ratifi- 
cation as  to  absolve  the  agent  for  violating  his  instructions.86 
And  if  the  principal  delays  action  after  knowledge  of  the 

agent  against  the  damages  and  costs  recovered  against  him  in  the 
action.  Frixione  v.  Tagliafferro,  10  Moore,  P.  C.  175. 

sz  Smith  v.  Cologan,  2  T.  R.  188,  note;  JEtna  Ins.  Co.  v.  Sabine, 
6  McLean  (U.  S.)  393,  Fed.  Cas.  No.  97;  Pickett  v.  Pearsons,  17  Vt 
470;  Hazard  v.  Spears,  *43  N.  Y.  485;  Hanks  v.  Drake,  49  Barb. 
(N.  Y.)  186;  Green  v.  Clark,  5  Denio  (N.  Y.)  497,  502;  Bray  v.  Gunn, 
53  Ga.  144;  Ward  v.  Warfield,  3  La.  Ann.  468;  Clay  v.  Spratt,  7 
Bush  (Ky.)  334;  Woodward  v.  Suydam,  11  Ohio,  300;  Menkens  v. 
Watson,  27  Mo.  163. 

»«  Ante,  p.  72.      See,  also,  cases  cited  in  last  note. 

«*  Bank  of  Owensboro  v.  Bank,  13  Bush  (Ky.)  526,  26  Am.  Rep. 
211;  Vincent  v.  Rather,  31  Tex.  77,  98  Am.  Dec.  516;  Story,  Ag.  § 
243. 

«  Triggs  v.  Jones,  46  Minn.  277,  284,  48  N.  W.  1113.  See,  also, 
Walker  v.  Walker,  5  Heisk.  (Tenn.)  425;  Wharton,  Ag.  §  67;  Mechem, 
Ag.  173. 

»«  Walker  v.  Walker,  5  Heisk.  (Tenn.)  425. 


88  CREATION  OF  RELATION RATIFICATION.  (Ch.  3 

facts  at  the  request  of  the  agent,  so  that  his  conduct  is  an 
implied  ratification,  the  agent  is  not  necessarily  absolved 
from  liability  for  his  breach  of  duty.87 

Same — Between  Agent  and  Third  Party. 

One  who  contracts  as  agent  of  another  is  deemed  to  war- 
rant his  authority.  '  If  the  contract  be  authorized,  the  prin- 
cipal, and  not  the  agent,  is  liable;  but,  if  it  turns  out  that 
the  agent  acted  without  authority,  he  must  respond  to  the 
other  party  in  damages.88  Ratification,  being  equivalent  to 
previous  authority,  relieves  the  agent  from  all  liability  to  the 
other  party  upon  an  unauthorized  contract.89  If  the  un- 

*7  In  Triggs  v.  Jones,  46  Minn.  277,  48  N.  W.  1113,  plaintiff  in- 
trusted to  an  agent  a  deed  with  instructions  to  deliver  it  to  C.  upon 
formation  of  a  contemplated  corporation  and  delivery  to  plaintiff  of 
stock  therein.  The  agent  delivered  the  deed  without  fulfillment  of 
the  conditions,  and  C.  conveyed  to  an  innocent  purchaser.  The  agent 
informed  plaintiff  of  the  delivery,  and  plaintiff  did  not  at  once  re- 
pudiate, but  joined  in  taking  steps  to  form  the  corporation,  which 
was  finally  abandoned.  In  an  action  to  obtain  a  reconveyance  and 
to  recover  damages  against  the  agent,  it  was  held  that  because  of 
the  delay  in  repudiating  plaintiff  was  not  entitled  to  a  reconveyance, 
but  that  his  conduct  did  not  amount  to  such  a  ratification  as  to 
absolve  the  agent  from  liability  for  breach  of  instructions.  Mitchell, 
J.,  said:  "Mere  passive  inaction  or  silence,  which  would  amount  to 
an  implied  ratification  in  favor  of  third  parties,  might  not  amount  to 
that  in  favor  of  the  agent,  so  as  to  absolve  him  from  liability  to  his 
principal  for  loss  or  damage  resulting  from  the  unauthorized,  act, 
especially  if  such  inaction  or  failure  to  immediately  disaffirm  was 
induced  by  the  assurances  or  persuasion  of  the  agent  himself.  Nor 
In  this  case  does  the  affirmative  action  of  the  plaintiff,  after  knowl- 
edge of  the  delivery  of  the  deed,  in  taking  part  in  the  preliminary 
steps  for  the  organization  of  the  contemplated  stock  company,  of 
itself  amount  to  a  ratification  of  the  unauthorized  act.  *  *  *  In- 
duced, as  such  action  probably  was,  by  the  assurances  of  Jones  that 
the  enterprise  would  still  go  on,  and  plaintiff  get  his  stock,  it  really 
amounted  to  nothing  more  than  an  effort  on  plaintiff's  part,  after 
knowledge  of  Jones'  deviation  from  his  instructions,  to  avoid  loss 
thereby,  which  is  not  such  a  ratification  as  will  relieve  the  agent." 

as  Post,  p.  368. 

8»  Spittle  v.  Lavender,  2  Brod.  &  B.  452;  Sheffield  v.  LaDue,  16 
Minn.  388  (Gil.  346),  10  Am.  Rep.  145;  Berger's  Appeal,  96  Pa.  443. 


g  18)  EFFECT   OF   RATIFICATION.  89 

authorized  act  is  a  tort,  ratification  is  of  course  powerless 
to  relieve  the  assumed  agent  from  responsibility,40  unless 
the  act  was  one  which  the  principal  might  lawfully  have 
done,  in  which  case  the  ratification  operates  as  a  justifica- 
tion.41 

«o  Hillberry  v.  Hatton,  2  H.  &  C.  822;  Richardson  v.  Kimball,  28 
Me.  463;  Perminter  v.  Kelly,  18  Ala.  716,  54  Ain.  Dec.  177. 

41  Whitehead  v.  Taylor,  10  A.  &  E.  210;  Hull  v.  Plgersklll,  1  Brod. 
&  B.  282. 


90  WHAT  ACTS  CAN  BE  DONE  BY  AGENT.  (Ch.  4 


CHAPTER  IV. 

WHAT  ACTS  CAN  BE  DONE  BY  AGENT— ILLEGALITY— CA- 
PACITY OF  PARTIES-JOINT  PRINCIPALS 
AND  AGENTS. 

19.  What  Acts  can  be  Done  by  Agent. 

20.  Illegality  of  Object 

21.  Capacity  of  Parties— Principal. 

22.  Capacity  of  Parties— Agent— Capacity  to  Act 

23.  Capacity  to  Enter  into  Contract  of  Agency. 

24.  Joint  Principals. 

25.  Joint  Agents. 

WHAT  ACTS  CAN  BE  DONE  BY  AGENT. 

19.  Whatever  a  person  can  do  in  his  own  right,  except  an  act 

required  1>y  statute  to  be  done  in  person,  he  can  do  by 
an  agent. 

ILLEGALITY   OF    OBJECT. 

20.  A  contract  of  agency  which  contemplates  an  illegal  ob- 

ject is  void. 

What  Acts  can  be  Done  by  Agent. 

At  common  law,  as  a  rule,  whatever  a  person  has  power 
to  do  in  his  own  right  he  can  do  by  an  agent,  with  the  same 
force  and  effect  as  if  he  had  done  it  in  person.1  A  few 
acts  of  a  personal  nature,  it  is  said,  cannot  be  delegated. 
Thus  a  man  could  not  do  homage  or  fealty  by  attorney.2 
So  the  exercise  of  a  power,  conferred  as  a  personal  trust 
or  confidence,  may  not  be  delegated ;  8  but  this  is  not  prop- 
erly an  exception  to  the  rule,  since  the  exercise  of  such 
a  power  is  not  something  which  the  possessor  may  do  in 

§§  19-20.     i  Combes'  Case,  9  Co.  75a. 
2  Combes'  Case,  9  Coke,  75a. 

*  Lyon  v.  Jerome,  26  Wend.  (N.  Y.)  485,  37  Am.  Dec.  271;  Newton 
v.  Bronson,  13  N.  Y.  587,  67  Am.  Dec.  89;  post,  p.  116. 


§§  19-20)  ILLEGALITY   OF  OBJECT.  91 

his  own  right.  Whether  an  act  authorized  or  required  by 
statute  may  be  done  by  an  agent  depends  upon  the  construc- 
tion of  the  particular  statute,  in  view  of  the  language  used 
and  the  nature  of  the  act.  Thus,  where  a  law  for  the  li- 
censing of  vessels  required  an  oath  of  ownership  by  the  own- 
er, an  oath  by  the  master,  acting  as  agent,  was  held  to  be  in- 
sufficient.4 And  under  Lord  Tenterden's  act,  requiring  an 
acknowledgment  or  promise,  in  order  to  take  a  debt  out  of 
the  statute  of  limitations,  to  be  "signed  by  the  party  charge- 
able thereby,"  it  was  held  that  the  signature  must  be  per- 
sonal, on  the  groun.d  that  the  enactment  was  one  of  a  series 
of  enactments  which  made  a  distinction  between  a  signature 
by  the  party  and  a  signature  by  agent.5  But,  in  cases  of 
signatures  required  by  statute,  it  is  generally  held  that  the 
common-law  rule,,  qui  facit  per  alium  facit  per  se,  will  prevail 
in  determining  the  construction,  if  there  is  nothing  in  the 
statute  to  indicate  a  different  intention.9 

It  follows  that,  subject  to  the  exceptions  mentioned,  an 
agency  can  be  created  for  any  lawful  purpose.  It  does  not 
follow,  of  course,  as  has  already  been  pointed  out,7  that  a 
person  can  escape  from  the  consequences  of  an  act  which  he 
commands  or  authorizes  because  it  is  unlawful,  for  a  man  is 
responsible  for  torts  and  crimes  whether  he  acts  in  his  own 
person  or  by  the  instrumentality  of  another  person. 

Illegality  of  Object. 

Certain  classes  of  agreements,  either  because  of  the  il- 
legality of  the  object,  or  because  certain  requirements  of 
the  law  have  not  been  complied  with,  or  for  other  reasons, 
are  prohibited,  and  if  for  any  reason  an  agreement  falls  with- 

«  United  States  v.  Bartlett,  Dav.  (U.  S.)  9,  Fed.  Cas.  No.  14,532. 

»  Hyde  v.  Johnson,  2  Bing.  (N.  C.)  776;  Swift  v.  Jewsbury,  L.  R.  9 
Q.  B.  301. 

•  In  re  Whiteley  Partners,  Limited,  32  Ch.  D.  337;  Finnegan  v. 
Lucy,  157  Mass.  439,  32  N.  E.  656,  See,  also,  Reg.  v.  Justices  of  Kent, 
L.  R.  8  Q.  B.  305. 

i  Tost,  p.  2C8. 


92  WHAT  ACTS  CAN   BE  DONE   BY  AGENT.  (Oh.  4 

in  a  prohibited  class  it  is  void.  Any  such  agreement,  since 
it  would  be  inoperative  and  void  if  entered  into  by  the  prin- 
cipal in  person,  is,  of  course,  void  if  entered  into  by  medium 
of  an  agent.  The  power  of  an  agent  cannot  rise  higher 
than  its  source. 

The  effect  of  illegality  upon  the  contract  of  agency  is  the 
same.  If  the  agreement  between  principal  and  agent  falls 
within  a  class  of  agreements  which  the  law  prohibits,  either 
because  of  the  illegality  of  the  object  contemplated,  or  be- 
cause of  failure  to  comply  with  some  legal  requirement,  or  for 
any  other  reason,  the  agreement  is  a  nullity,  and  neither 
party  acquires  any  of  the  rights  incident  to  the  formation  of 
the  relation  of  principal  and  agent.  The  principles  which 
determine  the  illegality  of  contracts  of  agency  are  the  same 
a.s  those  which  apply  to  other  contracts,  and  do  not  call 
for  separate  treatment.8  A  few  examples  will  serve  for  il- 
lustration. 

The  most  obvious  example  of  an  illegal  agency  is  an  em- 
ployment to  commit  a  crime.  "If  one  binds  himself  in  an 
obligation  to  kill  a  man,  burn  a  house,  maintain  a  suit,  or 
the  like,  it  is  void."  9  Even  an  agreement  to  commit  a  civil 
wrong,  though  the  wrong  may  not  be  indictable,  is  illegal, 
within  the  meaning  of  the  term  here  involved.10  Among  the 
agencies  prohibited  by  public  policy  may  be  named  those 
whose  object  is  to  procure  administrative  action  by  corrupt 
means,  as  by  such  means  to  procure  government  contracts,11 

*  Anson,  Contr.  c.  5;  Pollock,  Contr.  c.  6;  Clark,  Contr.  c.  8  (con- 
taining a  full  citation  of  cases). 

»  Shep.  Touch.  370.  See,  also,  Shackell  v.  Rosier,  2  Bing  (N.  C.)  638; 
Toplett  v.  Stockdale,  1  Ry.  &  M.  337;  Gale  v.  Leckie,  2  Stark.  107; 
Atkins  v.  Johnson,  43  Vt.  78,  5  Am.  Rep.  260;  Arnold  v.  Clifford,  2 
Sumn.  (U.  S.)  238,  Fed.  Cas.  No.  555;  Jewert  Pub.  Co.  v.  Butler,  15» 
Mass.  517,  34  N.  E.  1087. 

10  Clark,  Contr.  378. 

11  Providence  Tool  Co.  v.  Norris,  2  Wall.  (U.  S.)  45,  17  L.  Ed.  868; 
Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539;   Elkhart  County 
Lodge  v.  Crary,  98  Ind.  238,  49  Am.  Rep.  746. 


{}§  19-20)  ILLEGALITY   OF  OBJECT.  93 

or  pardons ; lf  to  procure  appointment  to  office ;  *'  to  in- 
fluence by  corrupt  means  the  action  of  legislatures,  or  lob- 
bying contracts;14  to  impair  the  integrity  of  elections;15 
to  obstruct  the  course  of  justice,  as  by  suppressing  evidence 
or  obtaining  false  testimony ; 19  to  corrupt  agents ; 1T  to  in- 
fluence the  action  of  another  by  underhand  means ; 18  to 
procure  a  marriage  for  compensation ; **  to  deal  in  fu- 
tures ; 20  and,  in  general,  to  do  any  act  which  is  contrary  to 
decency  and  morality.  The  subject  of  illegality  will  be  re- 
ferred to  again  in  connection  with  the  mutual  rights  and 
duties  of  principal  and  agent.21 

«  Hatzfield  v.  Gulden,  7  Watts  (Pa.)  152,  31  Am.  Dec.  750;  Kribben 
v.  Haycraft,  26  Mo.  396.  Such  agreements  are  not  illegal  where  no 
corrupt  means  are  to  be  used.  Chadwick  v.  Knox,  31  N.  H.  226,  64 
Am.  Dec.  329;  Moyer  v.  Cantieny,  41  Minn.  242,  42  N.  W.  1060. 

is  Meguire  v.  Corwine,  101  U.  S.  108,  25  L.  Ed.  899;  Providence 
Togl  Co.  v.  Norris,  2  Wall.  (U.  S.)  45,  17  L.  Ed.  868;  Gray  v.  Hook. 
4  N.  Y.  449;  Clark,  Contr.  416.  Such 'agreements  are  illegal  because 
of  their  tendency  to  introduce  corrupt  methods.  Providence  Tool  Co. 
v.  Norris,  supra. 

i*  Trist  v.  Child,  21  Wall.  (U.  S.)  441,  22  L.  Ed.  623;  Mills  v.  Mills, 
40  N.  Y.  543,  100  Am.  Dec.  535;  Brown  v.  Brown,  34  Barb.  (N.  Y.) 
533. 

IB  Nichols  v.  Mudgett,  32  Vt  546. 

i«  Gillet  v.  Logan  County,  67  111.  256;  Patterson  v.  Donner,  48  Cal. 
869. 

IT  Harrington  v.  Dock  Co.,  3  Q.  B.  D.  548;  Rice  v.  Wood,  113  Mass. 
133,  18  Am.  Rep.  459;  Atlee  v.  Fink,  75  Mo.  100,  43  Am.  Rep.  385. 

is  Byrd  v.  Hughes,  84  111.  174,  25  Am.  Rep.  442. 

i»  Crawford  v.  Russell,  62  Barb.  (N.  Y.)  92;  Duval  v.  Wellman. 
124  N.  Y.  156,  26  N.  E.  343;  Johnson  v.  Hunt,  81  Ky.  321. 

20  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct  160,  28  L.  Ed.  225; 
Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am. 
St  Rep.  159;  Mohr  v.  Mlesen,  47  Minn.  228,  49  N.  W.  862. 

«  Post,   pp.  404,  459. 


94  WHAT  ACTS  CAN  BE  DONE  BY  AGENT.  (Ch.  4 


CAPACITY  OF  PARTIES— PRINCIPAL 

21.  Capacity  to  enter  into  a  contract  of  agency  or  to  act  by 
means  of  an  agent  is  coextensive  -with  the  capacity  of 
the  principal  to  contract. 

EXCEPTION:    The   appointment   of   an   agent  by   an  infant 
or  lunatic  [by  power  of  attorney  nnder  seal]1  in  void. 

There  are  certain  persons  whom  the  law  declares  incapable, 
wholly  or  in  part,  of  entering  into  contracts,  and  their  in- 
capacity of  course  debars  them  equally  from  entering  into 
contracts  of  agency  or  contracting  by  means  of  agents.  As 
a  rule,  capacity  to  enter  into  a  contract  of  agency,  or  to  act 
or  contract  by  an  agent,  is  coextensive  with  capacity  to  con- 
tract. In  the  case  of  infants  and  persons  non  compos 
mentis,  however,  there  are  exceptions. 

Infanta. 

It  is  a  general  rule  of  common  law,  as  established  by 
modern  decisions,  that  the  contracts  of  an  infant  are  not  void, 
but  are  voidable,  at  his  option,  either  before  or  after  he  has 
attained  his  majority.2  We  should  naturally  expect  this 
rule  to  prevail  in  respect  to  the  contracts  entered  into  by 
an  infant  through  an  agent.  Nevertheless  it  is  generally 
laid  down  broadly  by  the  cases  that  an  infant  cannot  appoint 
an  agent  or  attorney,  and  that  any  such  appointment,  and 
consequently  all  acts  and  contracts  of  the  agent  under  such 
appointment,  are  absolutely  void.8  Yet  from  early  times  a 

§  21.  i  The  tendency  of  the  cases  is  to  confine  the  exception  to 
appointment  by  power  under  seal,  though  it  is  frequently  declared 
that  every  appointment  is  void.  Upon  principle,  the  appointment  of 
an  agent  by  an  infant  or  lunatic,  like  the  contract  of  such  person,  is 
voidable,  and  not  void. 

2  Anson,  Contr.  105  et  seq.;  Pollock,  Contr.  50  et  seq.;  Clark, 
Contr.  221  et  seq. 

a  Saunderson  v.  Man,  1  H.  Bl.  75;  Doe  v.  Roberts,  16  M.  &  W. 
778;  Fonda  v.  Van  Home,  15  Wend.  (N.  Y.)  631,  30  Am.  Dec.  77; 
Bool  v.  Mix,  17  Wend.  (N.  Y.)  120,  31  Am.  Dec.  285;  Bennett  v.  Davis, 
6  Cow.  (N.  Y.)  393;  Knox  v.  Flack,  22  Pa.  337;  Waples  v.  Hastings, 


§  21)  CAPACITY   OF  PARTIES.  95 

distinction  was  drawn  between  an  appointment  of  an  attor- 
ney to  do  an  act  which  is  to  the  infant's  advantage  and 
an  appointment  to  do  an  act  which  is  to  his  detriment,  the 
one  being  declared  valid  and  the  other  void.*  "The  distinc- 
tion between  deeds  of  femes  covert  and  infants,"  said  Lord 
Mansfield,  "is  important:  the  first  are  void;  the  second 
voidable.  *  *  *  Powers  of  attorney  are  an  exception  to 
the  general  rule  as  to  deeds ;  and  a  power  to  receive  seisin  is 
an  exception  to  that.  The  end  of  the  privilege  is  to  protect 
infants.  To  that  object,  therefore,  all  the  rules  and  their 
exceptions  must  be  directed."  8  A  somewhat  similar  dis- 
tinction was  formerly  made  between  the  contracts  of  an  in- 
fant that  were  manifestly  to  his  prejudice,  which  were  void, 
and  those  that  were  not  manifestly  so,  which  were  void- 
able; but  the  later  decisions  have  generally  repudiated 

3  Har.  (Del.)  403;  Wainwright  v.  Wilkinson,  62  Md.  146;  Philpot  v. 
Bingham,  55  Ala.  439;  Pyle  v.  Cravens,  4  Litt  (Ky.)  17;  Lawrence  v. 
McArter,  10  Ohio,  37;  Armitage  v.  Widoe,  36  Mich.  124;  Trueblood  v. 
Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Holden  v.  Curry,  85  Wis. 
504,  55  N.  W.  965;  Wambole  v.  Foote,  2  Dak.  1.  2  N.  W.  239.  See, 
also,  Bartholomew  v.  Dighton,  Cro.  Eliz.  424;  Whittinghara's  Case,  8 
Co.  42b;  Dexter  v.  Hall,  15  Wall.  (U.  S.)  9,  25,  21  L.  Ed.  73;  Tucker 
v.  Moreland,  10  Pet.  (U.  S.)  58,  68,  9  L.  Ed.  345;  Flexner  v.  Dickerson, 
72  Ala.  318;  Cole  v.  Pennoyer,  14  111.  158;  Fetrow  v.  Wiseman,  40 
Ind.  148,  155. 

«  Botteler  v.  Newport,  Y.  B.  21  Hen.  VI,  31;  Rames  v.  Machin. 
Noy,  130;  Story,  Ag.  §  6. 

•  Zouch  v.  Parsons,  3  Burr.  1794,  1805,  1808. 

"All  such  gifts,  grants,  or  deeds  made  by  an  infant  as  do  not  take 
effect  by  delivery  of  his  hand  are  void.  But  all  gifts,  grants,  or 
deeds  made  by  an  infant  by  matter  in  deed,  or  in  writing,  which  take 
effect  by  delivery  of  his  own  hand,  are  voidable  by  himself  and  his 
heirs,  and  by  those  who  have  bis  estate."  Perkins,  Prof.  Bk.  §  12. 
Referring  to  this  statement  of  the  law,  Lord  Mansfield  observed: 
"The  words  'which  do  take  effect*  are  an  essential  part  of  the  defini- 
tion; and  exclude  letters  of  attorney,  or  deeds  which  delegate  a  mere 
power  and  convey  no  interest."  Zouch  v.  Parsons,  supra.  See  Wam- 
baugb,  Cas.  Ag.  18,  note  1. 

A  power,  coupled  with  an  interest,  held  voidable,  and  not  void. 
Duvall  v.  Graves,  7  Bush  (Ky.)  461. 


1)6  WHAT  ACTS  CAN   BE   DONE  BY  AGENT.  (Ch.  4 

this  distinction,  holding  that  the  infant  is  amply  secured  by 
refusal  to  allow  the  contract  to  be  enforced  against  him 
during  his  infancy  and  by  leaving  it  to  his  option  to  ratify 
or  repudiate  it  after  his  majority.6  It  is  noticeable  that 
nearly  all  the  cases  cited  in  support  of  the  exception  to  the 
general  rule  which  declares  the  contracts  of  an  infant  to  be 
voidable  are  cases  involving  the  effect  of  powers  of  attor- 
ney or  warrants  of  attorney  to  confess  judgment,7  and,  while 
as  to  these  the  doctrine  is  perhaps  too  firmly  established 
by  precedent  to  be  departed  from,  the  tendency  of  the  later 
decisions  is  to  confine  the  exception,  which  has  frequently 
been  pronounced  to  be  without  reason,  to  such  cases.8  Thus 
it  has  been  held  that  an  infant  may  authorize  another  to  in- 
dorse a  note,  and  that  the  indorsement,  being  voidable, 

«  Pollock,  Contr.  51. 

t  Coursolle  v.  Weyerhauser,  69  Minn.  328,  333,  72  N.  W.  697;  Huff- 
cut,  Ag.  §  15. 

s  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229;  Welch  v.  Welch, 
103  Mass.  562;  Moley  v.  Brine,  120  Mass.  324;  Fairbanks  v.  Snow, 
145  Mass.  153,  13  N.  E.  596, 1  Am.  St.  Rep.  446,  per  Holmes,  J.;  Hardy 
v.  Waters,  38  Me.  450;  Towle  v.  Dresser,  73  Me.  252;  Patterson  v. 
Lippincott,  47  N.  J.  Law,  457,  1  Atl.  506,  54  Am.  Rep.  178;  Hastings 
v.  Dollarhide,  24  Cal.  195;  Coursolle  v.  Weyerhauser,  69  Minn.  328, 
72  N.  W.  697. 

Cf.  Bwell's  Evans,  Ag.  10,  note  1;  Swell's  Lead.  Cas.  on  Disabil- 
ities, 44;  13  Am.  Law  Rev.  287,  288;  Bishop,  Contr.  §  930;  Mechem, 
Ag.  §  55. 

The  following  considerations  have  been  suggested  as  the  founda- 
tion of  the  exception:  "This  rule  depends  upon  reasoning,  which,  if 
somewhat  refined,  is  yet  perhaps  well  founded.  The  constituting  of 
an  attorney  by  one  whose  acts  are  in  their  nature  voidable  is  re- 
pugnant and  impossible,  for  it  is  imparting  a  right  which  the  prin- 
cipal does  not  possess— that  of  doing  valid  acts.  If  the  acts  when  done 
by  the  attorney  remain  voidable  at  the  option  of  the  infant,  the  power 
of  attorney  is  not  operative  according  to  its  terms;  if  they  are  bind- 
ing upon  the  infant,  then  he  has  done  through  the  agency  of  an- 
other what  he  could  not  have  done  directly— binding  acts.  The  funda- 
mental principle  of  law  in  regard  to  infants  requires  that  the  infant 
should  have  the  power  of  affirming  such  acts  done  by  the  attorney 
as  he  chooses,  and  avoiding  others,  at  his  option;  but  this  involves 


§  21)  CAPACITY   OF  PABTIE8.  97 

may  be  ratified  as  if  made  by  the  infant  in  person.*  Indeed, 
it  has  been  held  in  a  recent  case  in  Minnesota  that  the  ap- 
pointment of  an  attorney  to  sell  and  convey  real  estate,  and  a 
conveyance  by  the  attorney  under  such  appointment,  are  not 
void,  but  are  merely  voidable,  and  capable  of  ratification  by 
the  infant  on  reaching  majority.  "On  principle,"  said  Mitch- 
ell, J.,  "we  think  the  power  of  attorney  of  an  infant,  and  the 
acts  and  contracts  made  under  it,  should  stand  on  the  same 
footing  as  any  other  act  or  contract,  and  should  be  consid- 
ered voidable  in  the  same  manner  as  his  personal  acts  and 
contracts  are  considered  voidable.  If  the  conveyance  of  land 
by  an  infant  personally,  who  is  of  imperfect  capacity,  is  void- 
able, as  is  the  law,  it  is  difficult  to  see  why  his  conveyance 
made  through  an  attorney  of  perfect  capacity  should  be  held 
absolutely  void.  *  *  *  The  courts  have  from  time  to  time 
made  so  many  exceptions  to  the  exception  itself  that  there 
seems  to  be  little  left  of  it,  unless  it  be  in  cases  of  powers  of 
attorney  required  to  be  under  seal,  and  warrants  of  attorney 
to  appear  and  confess  judgment  in  courts." 10 

As  has  already  been  pointed  out,  whether  an  act  performed 
without  authority  on  behalf  of  an  infant  is  capable  of  ratifi- 

an  immediate  contradiction,  for  to  possess  toe  right  of  availing  him- 
self of  any  of  the  acts  he  must  ratify  the  power  of  attorney,  and  if 
be  ratifies  the  power  all  that  was  done  under  it  must  be  confirmed. 
If  he  affirms  part  of  a  transaction,  he  at  once  confirms  the  power, 
and  thereby,  against  his  intention,  affirms  the  whole  transaction. 
Such  personal  and  discretionary  legal  capacity  as  an  infant  is  vested 
with  is,  therefore,  in  its  nature,  incapable  of  delegation;  and  the 
rule  that  an  infant  cannot  make  an  attorney  is,  perhaps,  not  an 
arbitrary  or  accidental  exception  to  a  principle,  but  a  direct,  necessary, 
logical  necessity  of  that  principle."  1  Am.  Lead.  Gas.  (5th  Ed.)  247. 
It  would  seem,  however,  that  an  infant  might  ratify  a  distinct  act 
done  under  the  power  without  ratifying  the  power,  and  without 
ratifying  other  acts  done  under  it 

9  Whitney  v.   Dutch,   14  Mass.   457,  7  Am.   Dec.  229;    Hardy  v. 
Waters,  38  Me.  450. 

10  Coursolle  v.  Weyerhauser,  69  Minn.  328,  72  N.  W.  697.    In  this 
case  the  power  of  attorney  was  not  required  to  be  under  seal,  the 
deed  being  operative  as  a  contract'to  sell. 

TIFF.P.&  A.— 7 


98  WHAT  ACTS  CAN   BE   DONE  BY  AGENT.  (Oh.  4 

cation  depends  upon  whether  his  appointment  to  do  the  act 
would  be  held  voidable  or  void.11 

Lunatics  and  Di^unken  Men. 

The  modern  rule  of  the  common  law  is  that  the  contract 
of  a  lunatic  or  other  person  non  compos  mentis,  like  that 
of  an  infant,  is  not  void,  but  is  voidable,  at  his  option.  It 
may  be  ratified  or  disaffirmed  by  the  lunatic  on  recovery 
of  his  sanity,  or  by  his  guardian  or  other  representative. 
The  principal  difference  between  the  contract  of  a  lunatic 
and  that  of  an  infant  is  that  if  the  other  party  did  not  know, 
or  have  reasonable  cause  to  know,  of  the  lunatic's  condition 
of  mind,  and  acted  in  good  faith,  and  the  contract  has  been 
so  far  executed  that  the  parties  cannot  be  placed  in  statu 
quo,  it  cannot  be  avoided.12  The  leading  case  on  this  point 
is  Molton  v.  Camroux,18  the  principle  of  which  has  generally, 
though  not  universally,  been  followed  in  this  country.14  This 
has  been  called  a  decision  of  necessity,  as  a  contrary  doctrine 
would  render  unsafe  all  ordinary  dealings  between  man  and 
man.16  If,  however,  the  lunatic  restores,  or  offers  to  re- 
store, the  consideration  which  he  has  received,  the  necessity 
ceases,  and  he  may  avoid  the  contract.16  It  has  been  held 
by  some  courts  that  the  deed  of  an  insane  person  is  abso- 
lutely void,  but  in  most  jurisdictions  no  distinction  in  this 
respect  is  made  between  a  deed  and  a  simple  contract,  and 
his  deed  is  held  to  be  voidable,  and  not  void.17  The  con- 
tractual capacity  of  a  lunatic  or  insane  person  under  guard- 
ianship depends  upon  statute,  and  differs  in  different  states. 

11  Ante,  p.  59. 

i*  Anson,  Contr.  115  et  seq.;  Pollock,  Contr.  98  et  seq.;  Clark, 
Contr.  263  et  seq.;  Tiffany,  Sales,  12  et  seq. 

i»  2  Ex.  487;  4  Ex.  17;   Ewell,  Lead.  Cas.  614. 

i*  For  citation  of  cases,  see  Tiffany,  Sales,  13,  note  46. 

IB  Elliot  v.  Ince,  7  De  GM  M.  &  G.  475,  per  Lord  Gran  worth. 

i«  Boyer  v.  Berry  men,  123  Ind.  451,  24  N.  E.  249;  Myers  v.  Knabe, 
Cl  Kan.  720,  33  Pac.  602;  Warfield  v.  Warfield,  76  Iowa,  633,  41  N. 
W.  383;  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  ^m.  Rep.  716. 

IT  Clark.  Contr.  268,  and  cases  cited.      ' 


§  21)  CAPACITY  OP  PARTIES.  99 

In  most  jurisdictions  contracts  of  a  person  who  has  been 
judicially  declared  insane  and  placed  under  guardianship  are 
void.18 

Upon  principle,  we  should  naturally  expect  the  general 
rule  that  the  contract  of  a  person  non  compos  mentis  is 
voidable,  and  not  void,  to  apply  to  the  contract  of  agency, 
and  also  to  a  contract  entered  into  by  an  agent  on  behalf 
of  an  insane  principal;  nevertheless  it  has  generally  been 
declared  that  an  insane  person  cannot  appoint  an  agent,19 
and  it  has  been  held  by  the  Supreme  Court  of  the  United 
States  that  a  power  of  attorney  executed  by  a  lunatic  is 
absolutely  void.20  It  is  to  be  observed,  however,  that  the 
rule  which  declares  the  contracts  of  insane  persons  voidable 
and  not  void  is  of  comparatively  recent  origin,  and  its  ap- 
plication to  agency  has  as  yet  received  little  attention.  In 
one  case,  at  least,  the  rule,  or  rather  the  exception,  that 
the  appointment  of  an  agent  by  an  insane  person  is  void,  if, 
indeed,  such  rule  or  exception  exists,  has  been  relaxed.11 

i«  Clark,  Contr.  268. 

»•  Stead  v.  Thompson,  3  B.  &  Ad.  357,  note  (a);  Tarbuck  v.  Bisp- 
ham,  2  M.  &  W.  2;  Dexter  v.  Hall,  15  Wall.  (U.  S.)  9,  21  L.  Ed.  73; 
Snyder  v.  Sponable,  1  Hill  (N.  Y.)  567;  Marvin  v.  Inglis,  39  How. 
Prac.  (N.  Y.)  329;  Lee  v.  Morris,  3  Bush  (Ky.)  210;  Story,  Ag.  §  6. 
See,  also,  Elias  v.  Association,  46  S.  C.  188,  24  S.  E.  102. 

A  husband  is  liable  quasi  ex  contractu  for  necessaries  supplied  to 
his  wife  during  his  insanity.  Read  v.  Legard,  6  Ex.  636;  ante,  p. 
40. 

«  Dexter  v.  Hall,  15  Wall.  (U.  S.)  9,  21  L.  Ed.  73.  Much  of  the  rea- 
soning in  this  case  goes  to  prove  that  the  contract  of  a  lunatic  is  void. 
See,  also,  McClun  v.  McClun,  176  111.  376,  52  N.  E.  928. 

«  Drew  v.  Nunn,  L.  R.  4  Q.  B.  D.  661.  See,  also,  Davis  v.  Lane, 
10  N.  H.  156;  Matthiessen  &  Weichers  Refining  Co.  v.  McMahon's 
Adrn'r,  38  N.  J.  Law,  536;  Hill  v.  Day,  34  N.  J.  Eq.  150;  Merritt  v. 
Merritt,  43  App.  Div.  68,  59  N.  Y.  Supp.  357;  Bunce  v.  Gallagher,  5 
Blatchf.  (U.  S.)  481,  489,  Fed.  Cas.  No.  2,133. 

Where  a  husband  held  out  his  wife  as  authorized  to  pledge  hi» 
credit,  and  a  tradesman  on  the  faith  thereof  supplied  goods  upon  her 
order,  the  husband  was  liable  for  the  price  of  the  goods,  notwith- 
standing his  intervening  insanity,  of  which  the  wife,  but  not  the 
tradesman,  had  knowledge.  Drew  v.  Nunn,  supra. 


100  WHAT  ACTS  CAN  BE  DONE  BY  AGENT.  (Ch.  4 

While  it  is  a  rule  that  insanity  of  the  principal  terminates 
the  authority  of  the  agent,22  it  has  been  held  that  a  prin- 
cipal who  has  become  insane  after  holding  out  another  as 
agent  is  nevertheless  bound  by  an  executed  contract  which 
a  third  person,  in  ignorance  of  the  insanity  and  in  reliance 
upon  the  holding  out,  has  entered  into  with  the  agent,  al- 
though the  insanity  was  known  to  the  agent.  This  was  in 
Drew  v.  Nunn,"  which  was  placed  upon  the  ground  that  the 
holding  out  is  a  representation  upon  which  the  third  person 
has  a  right  to  act  until  he  receives  notice  that  it  is  with- 
drawn. "The  defendant  became  insane,"  said  Brett,  L.  J.,2* 
"and  was  unable  to  withdraw  the  authority,  *  *  *  and 
where  one  of  two  persons,  both  innocent,  must  suffer  by 
the  wrongful  act  of  a  third  person,  that  person  making  the 
representation  which,  as  between  the  two,  was  the  original 
cause  of  the  mischief,  must  be  the  sufferer  and  must  bear  the 
loss."  Perhaps  no  better  ground  can  be  assigned  than  that 
suggested  in  explanation  of  Molton  v.  Camroux,  that  it  is  a 
decision  of  necessity,  as  a  contrary  doctrine  would  render  or- 

»a  Post,  p.  146.  »«  4  Q.  B.  Div.  661. 

24  Drew  v.  Nunn,  4  Q.  B.  Div.  661.  He  also  observes:  "It  ts  diffi- 
cult to  assign  the  ground  upon  which  this  doctrine,  which,  however, 
seems  to  me  to  be  the  true  principle,  exists.  It  is  said  that  the  right 
to  hold  the  insane  principal  liable  depends  upon  contract  I  have 
difficulty  in  assenting  to  this.  •  *  *  I  cannot  see  that  an  estop- 
pel is  created." 

"The  act  of  the  agent  hi  execution  of  the  power,  however,  will  not 
In  all  cases  be  avoided  on  account  of  the  incapacity.  If  the  prin- 
cipal has  enabled  the  agent  to  hold  himself  out  as  having  authority 
by  a  written  letter  of  attorney  or  by  previous  employment,  and  the 
Incapacity  of  the  principal  is  not  known  to  those  who  deal  with  the 
agent,  within  the  scope  of  the  authority  he  appears  to  possess,  the 
transaction  may  be  valid  and  binding  upon  the  principal.  Such  cases 
form  an  exception  to  the  rule,  and  the  principal,  and  those  claiming 
under  him,  may  be  precluded  from  setting  up  his  insanity  as  a  revo- 
cation, because  he  has  given  the  agent  power  to  hold  himself  out  as 
having  authority,  and  because  the  other  party  has  acted  in  good  faith 
and  in  ignorance  of  any  termination  of  it"  Davis  v.  Lane,  10  N.  H. 
156,  per  Parker,  0.  J. 


§  21)  CAPACITY   OF   PARTIES.  101 

dinary  dealings  between  man  and  man  unsafe.  From  the 
decision  in  Drew  v.  Nunn  it  would  be  but  a  short  step  to  the 
doctrine  that  the  appointment  of  an  agent  by  an  insane  prin- 
cipal is  voidable,  and  not  void.  And,  although  the  insanity 
had  existed  at  the  time  of  the  agent's  appointment,  if  neither 
the  agent  nor  the  third  person  were  aware  of  it,  when  they 
contracted,  it  would  seem  that  the  doctrine  of  Molton  v. 
Camroux  might- well  apply,  and  that  the  principal  should  be 
liable  upon  the  contract  if  it  was  executed,  and  the  other 
party  could  not  be  placed  in  statu  quo.26 

The  rules  in  regard  to  the  contracts  of  a  man  who  is  so 
intoxicated  as  not  to  know  what  he  is  doing  are  the  same 
as  those  applicable  to  insane  persons.  His  contracts  are 
voidable,  but  not  void,  and  hence  may  be  ratified  by  him 
when  sober.26  Upon  principle,  it  would  seem  that  the  ap- 
pointment of  an  agent  by  a  drunken  man  is  voidable,  and  not 
void. 

Whether  an  unauthorized  act  done  on  behalf  of  a  person 
non  compos  mentis  may  be  ratified  by  him  after  recovery 
from  his  disability  must  depend  upon  whether  the  appoint- 
ment of  an  agent  by  such  person  is  to  be  deemed  voidable 
or  void.27 

Married  Women. 

At  common  law  a  married  woman  is,  as  a  rule,  incapable 
of  binding  herself  by  a  contract,  and  her  contract  is  void. 
Incompetent  to  act  herself,  she  cannot  act  through  the  medi- 
um of  an  agent,  and  her  appointment  of  an  agent  is  void.28 

«  See  Evans,  Ag.  10;  Mechem,  Ag.  §  48;  Huff  cut,  Ag.  §  16. 

If  the  agent  was  aware  of  the  insanity,  although  the  third  person 
was  not,  there  would  perhaps  be  less  reason  for  holding  the  principal 
liable.  In  such  case,  it  seems,  the  agent  would  be  liable  to  the  third 
person  upon  his  so-called  warranty  of  authority.  Drew  Y.  Nunn,  4 
Q.  B.  Div.  661,  per  Brett,  L.  J.  Post,  p.  146. 

2«  Pollock,  Contr.  98  et  seq.;   Clark,  Contr.  274. 

27  Ante,  p.  58. 

as  Quids  v.  Sansom,  3  Taunt.  261;  Fairthorne  v.  Blaqulre,  6  M.  & 
8.  73;  Brirtin  v.  Wilder,  6  Hill  (N.  Y.)  242;  Dorrance  T.  Scott  3 


102  WHAT  ACTS  CAN  BE  DONE  BY  AGENT.  (Oh.  4 

In  most  jurisdictions,  however,  the  common-law  disabilities 
of  married  women  have  been  partly  or  wholly  removed,  with 
the  result  that  to  the  extent  to  which  they  may  act  or  con- 
tract in  person  they  may  generally  act  or  contract  by  agent, 
and  are  bound  by  the  acts  of  their  agents  within  the  limits 
of  the  authority  conferred.28  Conversely,  the  removal  of 
the  disabilities  of  married  women  has  imposed  upon  them 
corresponding  liabilities,  among  them  the  liability  of  a  prin- 
cipal, when  they  have  held  out  another  as  agent.80  Ordi- 
narily a  married  woman  may  appoint  her  husband  an  agent,81 
although  under  some  statutes  this  power  is  denied  her." 

It  must  always  be  borne  in  mind  that  the  capacities  of 
married  women  are  created  by  statute,  and  that  their  acts 
performed  by  means  of  agents  are  binding  upon  them  only 
within  the  limits  of  the  capacity  so  created.88  "The  dis- 
abilities of  a  married  woman  are  general,  and  exist  at  com- 
mon law.  The  capabilities  are  created  by  statute.  *  *  * 
It  is  for  him  who  asserts  the  validity  of  a  contract  of  a  feme 
covert  by  evidence  to  bring  it  within  the  exceptions."  8*  And 

Whart.  (Pa.)  309,  31  Am.  Dec.  509;  Caldwell  v.  Walters,  18  Pa.  79, 
55  Am.  Dec.  592;  Henchman  v.  Roberts,  2  Har.  (Del.)  74. 

2»  Weisbrod  v.  Railway  Co.,  18  Wis.  35,  86  Am.  Dec.  743;  Lavassar 
v.  Washburne,  50  Wis.  200,  6  N.  W.  616;  Knapp  v.  Smith,  27  N.  Y. 
277;  Baum  v.  Mullen,  47  N.  Y.  577;  Vail  v.  Meyer,  71  Ind.  159; 
Griffin  v.  Ransdell,  Id.  440;  Patten  v.  Patten,  75  111.  446;  McLaren  v. 
Hall,  26  Iowa,  297;  Porter  v.  Haley,  55  Miss.  66,  30  Am.  Rep.  502; 
Maxcy  Mfg.  Co.  v.  Burnham,  89  Me.  538,  36  Atl.  1003,  56  Am.  St. 
Rep.  436. 

so  Bodine  v.  Killeen,  53  N.  Y.  93;  Lane  v.  Lockridge's  Ex'x  (Ky.) 
48  S.  W.  975;  Hoene  v.  Pollak,  118  Ala.  617,  24  South.  349,  72  Am. 
St.  Rep.  189.  Cf.  Dobbin  v.  Cordiner,  41  Minn.  165,  42  N.  W.  870, 
4  L.  R.  A.  333,  16  Am.  St.  Rep.  683. 

si  Weisbrod  v.  Railway  Co.,  18  Wis.  35,  86  Am.  Dec.  743;  Rowell 
v.  Klein,  44  Ind.  290,  15  Am.  Rep.  235. 

sz  Sanford  v.  Johnson,  24  Minn.  172. 

»s  Nash  v.  Mitchell,  71  N.  Y.  199,  27  Am.  Rep.  38;  Walker  v.  Car- 
rington,  74  111.  446;  Kenton  Ins.  Co.  v.  McClellan,  43  Mich.  564,  6  N. 
W.  88;  Wilcox  v.  Todd,  64  Mo.  390;  Troy  Fertilizer  Co.  v.  Zachry. 
114  Ala.  177,  21  South.  471. 

84  Nash  v.  Mitchell,  71  N.  Y.  199,  27  Am.  Rep.  38. 


§  21)  CAPACITY   OF   PARTIES.  103 

while  it  is  generally  true  that  what  a  person  has  a  right  to 
do  himself  he  may  authorize  another  to  do  for  him,  it  does 
not  necessarily  follow  that  because  power  to  act  in  person 
has  been  conferred  by  statute  the  power  may  be  exercised 
by  agent  or  attorney.85  Whether  this  result  follows  de- 
pends upon  the  terms  of  the  enabling  statute.  Frequently 
such  statutes  have  been  construed  with  extreme  strictness. 
Thus,  under  statutes  empowering  a  married  woman  to  con- 
vey her  lands  by  deed  executed  by  herself  and  her  husband, 
and  requiring  her  separate  examination  and  acknowledg- 
ment to  be  certified  thereon,  it  has  been  held  in  numerous 
cases  that  she  can  convey  only  in  the  manner  prescribed, 
and  that  a  deed  executed  on  behalf  of  husband  and  wife 
by  attorney,  pursuant  to  a  power  of  attorney  executed  by 
them  jointly  and  acknowledged  and  certified  in  the  manner 
required  for  a  deed,  is  inoperative  to  convey  her  title.88  A 
more  liberal  construction  of  like  statutory  provisions  has  re- 
cently been  adopted  by  the  Supreme  Court  of  the  United 
States,  and  a  similar  power  was  sustained,  upon  the  ground 
that  there  was  nothing  in  the  terms  of  the  statute  to  ex- 
clude the  natural  implication  that  a  power  to  convey  includes 
the  power  to  appoint  another  to  make  the  conveyance.87 
A  consideration  in  detail  of  the  power  of  married  women  to 

«»  Ante,  p.  gk 

»«  Sumner  v.  Conant,  10  Vt.  9;  Lewis  v.  Coxe,  5  Har.  (Del.)  401; 
Mott  v.  Smith,  16  Cal.  533;  Gillespie  v.  Worford,  2  Cold.  (Tenn.)  632; 
McCreary  v.  McCorkle  (Tenn.  Ch.  App.)  54  S.  W.  53;  Holland  v. 
Moon,  39  Ark.  120. 

See,  also,  Holladay  v.  Daily,  19  Wall.  (U.  S.)  606,  609,  22  L.  Ed.  187; 
Earle's  Adm'rs  v.  Earle,  20  N.  J.  Law,  347;  Steele  v.  Lewis,  1  T.  B. 
Mon.  (Ky.)  43;  Bishop,  Mar.  Worn.  §  602. 

*i  Under  the  laws  of  Maryland  which  were  in  force  In  the  District 
of  Columbia  in  1859,  a  married  woman  owning  real  estate  in  the 
District,  which  she  had  power  to  convey  by  deed  Joined  in  by  her 
husband,  and  privily  acknowledged  by  her,  might,  by  a  power  of  at- 
torney similarly  executed  in  another  state,  authorize  an  attorney  to 
execute  such  conveyance  in  her  behalf.  Williams  v.  Paine,  169  U.  S. 
55,  18  Sup.  Ct.  279.  42  L.  Ed.  658,  affirming  7  App.  D.  C.  116.  Peck- 


104  WHAT  ACTS  CAN  BE  DONE  BY  AGENT.  (Ch.  4 

appoint  agents,  depending,  as  it  does,  upon  the  enactments 
of  the  different  states,  is  beyond  the  scope  of  this  book. 

Aliens. 

Aliens  have  generally  the  same  power  to  contract,  and 
consequently  to  appoint  agents,  that  other  persons  have, 
though  in  some  states  they  are  by  statute  prohibited  from 
acquiring  or  holding  land.88  War,  however,  suspends  all 
commercial  intercourse  between  the  belligerent  countries, 
except  so  far  as  may  be  allowed  by  the  sovereign  authority, 
and  in  consequence  all  contracts  between  the  citizens  of  the 
belligerents  which  tend  to  increase  the  resources  of  the  en- 
emy or  look  to  or  involve  any  kind  of  trading  or  commercial 
dealing  between  the  two  countries  are  prohibited.88  And  it 
has  been  held  that  an  alien  enemy  cannot  appoint  an  agent 
within  the  United  States  for  any  purpose.40  Yet  war  does 
not  necessarily  terminate  an  agency  unless  it  involves  such 
prohibited  intercourse.41 

Corporations. 

Within  the  limits  of  the  powers  conferred  by  its  charter 
a  corporation  may  appoint  an  agent.  Indeed,  a  corporation, 
being  impersonal,  can  act  only  through  the  intervention  of 
agents.42  Frequently,  the  power  to  appoint  officers  and 
agents  is  expressly  conferred  by  charter,  but  the  power  to 
appoint  agents  is  inherent  in  all  private  corporations.48 

ham,  J.,  said:  "When  the  power  is  given  her  by  law  to  convey 
directly,  she  can  by  the  same  ceremonies  authorize  another  to  do  the 
act  for  her.  The  reasoning  which  would  prevent  It  is,  as  we  think, 
entirely  too  technical,  fragile,  and  refined  for  constant  use." 

««  Clark,  Contr.  216. 

»»  Keershaw  v.  Kelsey,  100  Mass.  561;  Williams  v.  Paine,  169  U. 
S.  55,  18  Sup.  Ct.  279,  42  L.  Ed.  658;  United  States  v.  Gross  mayer, 
9  Wall.  (U.  S.)  72;  New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  24 
L.  Ed.  453. 

40  United  States  v.  Grossmayer,  9  Wall.  (U.  S.)  72,  19  L.  Ed.  627. 

"  Post,  p.  149.  *2  Ante,  p.  30. 

4»  Hurlbut  v.  Marshall,  62  Wis.  590,  22  N.  W.  852;  Protection  Life 
Ins.  Co.  v.  Foote,  79  111.  361;  St  Andrews  Bay  Land  Co.  v.  Mitchell, 
4  Fla.  192,  54  Am.  Dec.  340:  Clark,  Coro.  482. 


§§  22-23)  CAPACITY  or  PARTIES.  105 

A  mere  unincorporated  association,  not  being  a  legal  en- 
tity, is  incapable  of  appointing  an  agent.4* 

CAPACITY  OF  PARTIES— AGENT— CAPACITY  TO  ACT. 

22.  All  persons    [of  sound  mind],1   including  persons  incapa- 

ble of  contracting  on  their  own  behalf,  are  competent 
to  act  as  agents. 

SAME—CAPACITY  TO   ENTER  INTO   CONTRACT   OF 
AGENCY. 

23.  Capacity  to  enter  into  a  contract  of  agency  is  coextensive 

with  the  capacity  of  the  agent  to  contract. 

Inasmuch  as  the  act  of  an  agent  is  in  law  the  act  of  his 
principal,  incapacity  of  the  agent  to  make  a  binding  contract 
on  his  own  behalf  does  not  debar  him  from  making  a  binding 
contract  on  the  part  of  his  principal.  "Monks,  infants, 
fern  coverts,2  persons  attainted,  outlawed,  excommunicated, 
villeins,  aliens,  &c.,  may  be  attorneys."  8  So  during  the  ex- 
istence of  slavery  in  this  country  it  was  held  that  "a  slave, 
who  is  homo  non  civilis,  a  person  who  is  little  above  a  brute 
in  legal  rights,  may  act  as  the  agent  of  his  owner  or  hirer."  * 
Different  considerations,  of  course,  apply  to  the  contract 
of  agency  entered  into  between  principal  and  agent.  Here 
the  agent  contracts  on  his  own  behalf,  and  the  validity  and 
effect  of  the  contract  depend  upon  his  contractual  capacity.5 

««  Post,  p.  111. 

§§  22-23.  i  As  to  the  qualification  of  the  rule  Introduced  by  the 
words  in  brackets,  post,  p.  106. 

*  As  to  alien  enemies,  see  ante,  p.  104. 

«  Co.  Lltt.  52a.  See,  also,  Perkins,  Prof.  Bk.  §§  184-187.  In  some 
states  It  is  enacted  that  any  person  may  be  an  agent  Gal.  Civ.  Code, 
52296. 

*  Lyon  v.  Kent,  45  Ala.  656.    See,  also,  Powell  v.  State,  27  Ala.  51; 
Stanley  v.  Nelson,  28  Ala.  514;   Chastain  y.  Bowman,  1  Hill  (S.  C.) 
270. 

B  Ante,  p.  17. 


106  WHAT  ACTS  CAN   BE  DONE   BY  AGBSNT.  (Oh.  4 

Married   Women. 

In  spite  of  the  legal  fiction  of  the  common  law  that  hus- 
band and  wife  are  one  person,  the  capacity  of  a  married 
woman  to  act,  even  as  agent  or  attorney  of  her  husband,9  or 
of  a  third  person  dealing  with  him,7  has  always  been  recog- 
nized. Within  the  scope  of  the  authority  conferred,  the  hus- 
band was  bound  by  her  acts  and  admissions.  She  might 
also  be  the  agent  of  another  in  dealing  with  other  persons.8 
Of  course,  no  express  or  implied  contract  of  agency  could 
exist'  between  principal  and  agent  in  any  such  case.  How 
far  such  a  contract  can  exist  between  a  husband  and  wife, 
where  either  acts  as  agent  of  the  other,  under  the  enabling 
statutes  of  the  present  day,  depends,  of  course,  upon  the 
terms  and  construction  of  the  enactments  of  the  different 
states. 

Lunatics. 

It  is  laid  down  by  Story  "that  an  idiot,  lunatic,  or  person 
otherwise  non  compos  mentis  cannot  do  any  act,  as  an 
agent  or  attorney,  binding  upon  the  principal ;  for  they  have 
not  any  legal  discretion  or  understanding  to  bestow  upon 
the  affairs  of  others,  any  more  than  upon  their  own."  •  Yet 

«  Anon.,  1  Str.  527;  Emerson  v.  Blonden,  1  Esp.  142;  Prestwick 
v.  Marshall,  7  Bing.  565;  Plimmer  v.  Sells,  1  N.  &  M.  422;  Pickering 
v.  Pickering,  6  N.  H.  124;  Felker  v.  Emerson,  16  Vt.  653,  42  Am. 
Dec.  532;  Mackinley  v.  McGregor,  3  Whart.  (Pa.)  369,  31  Am.  Dec. 
522;  Hopkins  v.  Mollinieux,  4  Wend.  (N.  Y.)  465;  Edgerton  v. 
Thomas,  9  N.  Y.  40;  Cantrell  v.  Colwell,  3  Head  (Tenn.)  471. 

i  Co.  Lltt.  52a;  Fenner  v.  Lewis,  10  Johns.  (N.  Y.)  38;  Story, 
Ag.  §  7. 

«  Story,  Ag.  §  7. 

"A  feme  covert  cannot  be  an  agent  for  another  than  her  husband 
except  by  his  consent,  in  which  case  he  is  bound  by  her  acts."  Ga. 
Code  (1895)  §  3001.  Cf.  Tucker  v.  Cocke,  32  Mass.  184. 

9  Story,  Ag.  §  7.  See,  also,  Mechem,  Ag.  §  58;  EwelPs  Evans,  Ag. 
171. 

"Any  one,  except  a  lunatic,  imbecile,  or  child  of  tender  years,  may 
be  an  agent  for  another."  Lyon  v.  Kent,  45  Ala.  656,  per  Peters,  J. 

"Any  person  may  be  appointed  an  agent  who  is  of  sound  mind." 
Ga.  Code  (1895)  §  3001. 


§§  22-23)          CAPACITY  OF  PARTIES.  107 

many  simple  acts  of  agency  can  be  as  well  performed  by  an 
insane  person  as  by  one  of  sound  mind,  and  it  cannot  be 
doubted  that  such  acts  of  an  insane  agent  would  be  binding 
upon  the  principal.  And  at  the  present  day,  when  the  con- 
tracts of  the  lunatic  himself  are  voidable  and  not  void,  and 
if  executed  cannot  be  avoided  if  the  other  party  was  ignorant 
and  acted  in  good  faith  and  cannot  be  placed  in  statu  quo,10 
it  is  improbable  that  it  would  be  held  without  exception  that 
a  person  non  compos  mentis  cannot,  as  agent,  do  any  act 
binding  upon  his  principal.  The  effect  of  the  agent's  in- 
sanity upon  the  rights  of  the  principal  and  of  third  persons 
does  not  appear  to  have  come  before  the  courts. 

Infants. 

An  infant  may  act  as  agent,  and  his  acts  in  that  capacity 
are  binding  upon  his  principal.11  It  has  been  suggested 
that  this  rule  is  subject  to  the  qualification  that  the  infant 
must  possess  sufficient  mental  capacity  for  the  business  in- 
trusted to  him,12  but  unless  advantage  were  taken  of  the 
tender  years  of  an  infant  agent  by  the  person  dealing  with 
him  the  principal  would  apparently  have  no  ground  for  avoid- 
ing responsibility.  So  far  as  concerns  the  contract  of  agen- 
cy, the  infant  may,  of  course,  avoid  it  like  other  contracts.18 

Other  Party — Statute  of  Frauds. 

There  is  no  inherent  reason  why  one  party  to  a  contract 
may  not  act  for  the  other  in  preparing  and  signing  an  In- 

10  Ante,  p.  98. 

11  Watkins  v.  Vince,  2  Stark.  368;   In  re  D'Angiban,  L.  R.  15  Cb. 
D.  228;    Com.  v.  Holmes,  119  Mass.  195;   Talbot  v.  Bo  wen,  1  A.  K. 
Marsh.  (Ky.)  436,  10  Am.  Dec.  747. 

izWharton,  Ag.  §  15;  Mechem,  Ag.  $  59;  Lyon  v.  Kent,  45  Ala. 
65G. 

i»  Vasse  v.  Smith,  6  Cranch  (U.  S.)  226,  3  L.  Ed.  207;  Vent  v.  Os- 
good,  19  Pick.  (Mass.)  572;  Gaffney  v.  Hayden,  110  Mass.  137,  14 
Am.  Rep.  580;  Whitmarsh  v.  Hall,  3  Denio  (N.  Y.)  376;  Derocher  v. 
Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286;  Widrig  v.  Taggart, 
51  Mich.  103,  16  N.  W.  251. 


108  WHAT  ACTS  CAN   BE  DONE   BY  AGENT.  (Ch.  4 

strument  which  contains  its  terms,14  or  even  as  attorney 
for  the  other  in  executing  an  instrument  in  its  performance. 
Thus,  under  a  mortgage  containing  a  power  of  sale,  which 
provides  that  the  mortgagee  may  purchase  at  the  sale,  and 
that  the  deed  to  the  purchaser  may  be  made  by  the  mort- 
gagee as  attorney  of  the  mortgagor,  it  has  been  held  that 
such  a  deed  executed  by  the  mortgagee  as  attorney  directly 
to  himself  is  valid.15  Under  the  seventeenth  section  of  the 
statute  of  frauds,18  however,  a  party  to  a  contract  of  sale 
may  not,  as  agent  of  the  party  to  be  charged,  execute  the 
"note  or  memorandum"  provided  for.  The  statute  provides 
for  a  note  or  memorandum  to  be  "made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents 
thereunto  lawfully  authorized,"  and  this  language  has  been 
construed  to  mean  that  the  agent  must  be  some  third  per- 
son, and  not  the  other  contracting  party ;  for  to  hold  other- 
wise would  open  the  door  to  the  fraud  which  the  statute 
was  intended  to  prevent.17  Under  the  fourth  section,  pro- 
viding that  the  writing  shall  be  signed  by  "the  party  to  be 
charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized,"  the  same  rule  prevails.18 

i*  A  memorandum  of  an  agreement,  not  required  by  the  statute 
of  frauds,  made  by  one  party  in  a  book  of  the  other,  in  his  presence 
and  at  his  request,  is  evidence  against  him.  Snyder  v.  Wolford,  33 
Minn.  175,  22  N.  W.  254,  53  Am.  Rep.  22. 

is  Hall  v.  Bliss,  118  Mass.  554,  19  Am.  Rep.  476;  Woonsocket  Inst. 
for  Savings  v.  Worsted  Co.,  13  R.  I.  255;  Jones,  Mtg.  §  1892,  But 
see  remarks  of  Walton,  J.,  in  Clough  v.  Clough,  73  Me.  487,  40  Am. 
Rep.  386. 

i«  29  Car.  II,  c.  3,  §  17. 

"  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720;  Wright  v.  Dannah,  2 
Camp.  203;  Fail-brother  v.  Simmons,  5  B.  &  Aid.  333  (memorandum 
signed  by  auctioneer,  suing  as  seller);  Smith  v.  Arnold,  5  Mason 
(U.  S.)  414,  Fed.  Cas.  No.  13,004;  Bent  v.  Cobb,  9  Gray  (Mass.)  397, 
69  Am.  Dec.  295;  Johnson  v.  Buck,  35  N.  J.  Law,  338,  342,  10  Am. 
Rep.  243;  Tull  v.  David,  45  Mo.  444,  100  Am.  Dec.  385. 

The  rule  does  not,  however,  exclude  the  agent  of  the  seller  from 
acting  as  agent  of  the  buyer.  Durrell  v.  Evans,  30  L.  J.  Ex.  354, 
6  H.  &  N.  660.  See  Benjamin,  Sales,  §§  267,  267a;  Tiffany,  Sales,  77. 

is  Smith  v.   Arnold,  5   Mason  (U.   S.)  414,  Fed.   Cas.   No.   13,004; 


§§  22-23)  CAPACITY  or  PARTIES.  109 

Person  Adversely  Interested. 

It  is  sometimes  said  that  a  person  cannot  become  agent 
in  a  transaction  where  he  has  an  interest  or  a  duty  which 
is  adverse  to  that  of  his  principal.  Thus  it  is  said  that  a 
person  cannot  act  as  agent  in  buying  his  own  goods,  and 
that  at  a  sale  made  for  his  principal  he  cannot  become  the 
buyer.19  But  while  an  agent  will  not  be  permitted  to  as- 
sume a  position  in  which  his  interest  is  antagonistic  to  that 
of  his  principal,  and  if  he  does  so  the  principal  may  dis- 
affirm the  transaction,  adverse  interest  does  not  incapacitate 
the  agent.  Indeed,  the  right  of  the  principal  to  affirm  rests 
upon  the  very  basis  of  agency.80  This  subject  will  be  dis- 
cussed in  treating  of  the  duties  of  the  agent  to  his  princi- 
pal." 

Unlicensed  Agent — Attorney  at  Law. 

There  are  numerous  statutes,  enacted  for  the  purpose  of 
protecting  the  public  in  dealings  with  certain  classes  of 
agents,  principally  attorneys  at  law  "  and  brokers,2*  which 
require  them  to  procure  a  license  or  certificate  as  a  condi- 
tion precedent  to  the  right  to  engage  in  business.  The  ef- 
fect of  noncompliance  by  such  persons  with  these  statutes 
is  to  preclude  them  from  recovering  compensation  from 
their  employers  for  services  rendered.24  In  Michigan,  under 
a  constitutional  provision  that  any  person  shall  have  the  right 

Bent  v.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295;  Browne,  Stat. 
Frauds,  §  367. 

i»  Story,  Ag.  §  9.  *«  Wharton,  Ag.  §  18.  «  Post,  p.  420. 

22  Ames  v.  Oilman,  10  Mete.  (Mass.)  239;  Hall  v.  Bishop,  3  Daly 
(N.  Y.)  109;  Tedrick  v.  Hiner,  61  111.  189;  Hltteon  v.  Browne,  3  Colo. 
304;  Mclver  v.  Clarke,  69  Miss.  408,  10  South.  581.  Cf.  Harland  v. 
Lilienthal,  53  N.  Y.  438. 

28  Cope  v.  Rowlands,  2  M.  &  W.  149;  Johnson  v.  Hulings,  103  Pa. 
498,  49  Am.  Rep.  131;  Buckley  v.  Humason,  50  Minn.  195,  52  N.  W. 
385,  16  L.  R.  A.  423,  36  Am.  St.  Rep.  637;  Stevenson  v.  Ewing,  87 
Tenn.  49,  9  S.  W.  230. 

2*  Cases  cited,  notes  22  and  23,  supra.  See  Clark,  Contr.  391;  post, 
P-  459. 


110  WHAT  ACTS  CAN   BE   DONE   BY  AGENT.  (Ch.  4 

to  prosecute  or  defend  his  suit  in  person  "or  by  an  attorney 
or  agent,"  the  word  "agent"  was  construed  as  synonymous 
with  "attorney,"  and  it  was  held  that  a  party  to  a  suit  could 
not  appear  by  an  agent  who  was  not  licensed  as  attorney.20 

JOINT   PRINCIPALS. 

24.  Two  or  more  persons  may  become  joint  principals  by  au- 
thorizing a  third  person  or  one  of  their  number  to 
act  on  behalf  of  all. 

In  General. 

Capacity  to  appoint  an  agent  must  be  distinguished  from 
authority  to  appoint.  "Capacity  means  power  to  bind  one- 
self; authority  means  power  to  bind  another.  *  *  * 
Capacity  is  usually  a  question  of  law;  authority  is  usually 
a  question  of  fact."  *  Two  or  more  persons,  if  they  are 
individually  capable,  may  appoint  an  agent,  either  one  of 
themselves  or  a  third  person,  to  act  for  them  in  a  transac- 
tion in  which  they  are  jointly  interested,  thus  becoming 
joint  principals.  The  assent  of  all  the  principals  to  the  crea- 
tion of  the  agency  is,  of  course,  required.  Authority  to  act, 
or  to  appoint  an  agent  to  act,  on  behalf  of  all,  is  not  con- 
ferred upon  one  of  several  persons  because  of  common  in- 
terest or  common  ownership.  Thus,  one  of  several  joint 
tenants  or  tenants  in  common  of  land  or  chattels  has  not, 
as  such,  power  to  sell  or  to  authorize  the  sale  of  anything 
more  than  his  individual  interest.2  To  authorize  a  sale  of  the 
whole,  all  must  concur  in  the  appointment  of  the  agent  or  in 
ratification  of  his  act.* 

SB  Cobb  v.  Judge,  43  Mich.  289,  5  N.  W.  309. 

§  24.     i  Chalmers,  Sale  of  Goods,  6. 

2  Sims  v.  Dame,  113  Ind.  127,  15  N.  B.  217;  Richey  v.  Brown,  68 
Mich.  435,  25  N.  W.  386;  Tipping  v.  Robbing,  64  Wis.  546,  25  N.  W. 
713. 

•  Keay  v.  Fenwick,  L.  R.  1  C.  P.  D.  745. 


§  24)  JOINT  PRINCIPALS.  Ill 

Same — Partnership. 

The  rule  in  the  case  of  partners,  although  apparently  dif- 
ferent, rests  upon  the  same  principle.  By  virtue  of  the  re- 
lation existing  between  partners,  each  is  virtually  both  prin- 
cipal and  agent.4  Each  has  authority,  unless  the  authority 
is  expressly  limited,  to  bind  the  firm  and  its  members  by  any 
act  necessary  for  carrying  on  the  partnership  business,  and 
this  authority  extends  to  the  appointment  of  agents,  so 
far  as  proper  and  necessary  for  that  purpose.  The  assent 
of  all  the  partners  to  such  appointment  is  given  by  implica- 
tion in  advance  by  their  assent  to  the  formation  of  a  part- 
nership relation.  To  the  appointment  of  an  agent  for  any 
purpose  not  within  the  scope  of  the  partnership,  and  hence 
not  embraced  within  their  original  assent,  the  concurrence 
of  all  the  partners  is  requisite.' 

Same — Voluntary  Association. 

Voluntary  unincorporated  associations,  the  object  of  which 
is  not  to  share  profits,  such  as  clubs,  social,  charitable  and 
religious  societies,  and  the  like,  are  not  partnerships,  and 
consequently  their  members,  as  such,  are  not  liable  for  each 
other's  acts.6  If  the  members  are  liable  at  all  for  acts  done 
on  behalf  of  the  association,  it  must  be  because  they  directly 
participate  in  the  acts,7  or  because  they  authorize  or  ratify 
them.  Authority  is  not  implied  from  the  mere  fact  of  asso- 
ciation.8 Authority  may,  indeed,  be  conferred  in  advance 
by  accepting  membership  in  an  association  whose  constitu- 

*  Pooley  v.  Driver,  5  Ch.  D.  458.    See  George,  Partn.  49,  212. 

»  Beckham  v.  Drake,  9  M.  &  W.  79;  Lucas  v.  Bank,  2  Stew.  (Ala.) 
280;  Durgin  v.  Somers,  117  Mass.  55;  Burgan  v.  Lyell,  2  Mich.  102, 
65  Am.  Dec.  53;  George,  Partn.  218. 

•  George,  Partn.  24.  *  Cross  v.  Williams,  7  H.  &  N.  675. 

s  Flemyng  v.  Hector,  2  M.  &  W.  172;  Lafond  v.  Deems,  81  N.  Y. 
607;  Ash  v.  Gule,  97  Pa.  493,  39  Am.  Rep.  818;  Burt  v.  Lathrop,  52 
Mich.  106,  17  N.  W.  716;  Blakely  v.  Bennecke,  59  Mo.  193;  McCabe 
v.  Goodfellow,  133  N.  Y.  89,  30  N.  E.  728,  17  L.  R.  A.  204;  Lewis 
v.  Tilton,  64  Iowa,  620,  19  N.  W.  911,  52  Am.  Rep.  436.  See,  also. 
Winona  L.  Co.  v.  Church,  6  S.  D.  498.  62  N.  W.  107. 


112  WHAT  ACTS  CAN  BE  DONE  BY  AGENT.  (Ch.  4 

tion  or  articles  of  association  expressly  provide,  for  example, 
that  authority  to  bind  the  members  shall  be  vested  in  its 
officers,  or  that  contracts  may  be  entered  into  on  behalf 
of  the  association  when  authorized  by  vote  of  a  majority.9 
In  other  cases,  it  must  be  shown  that  the  member  sought 
to  be  charged  has  by  words  or  conduct  authorized  the  act 
or  contract  in  question.10 

JOINT  AGENTS. 

25.  Authority  may  be  given  to  two  or  more  persons  jointly 
or  severally.  'When  authority  of  a  private  nature  is 
given  to  two  or  more  persons,  unless  the  principal  has 
manifested  a  different  intention,  the  authority  is  pre- 
sumed to  be  joint,  and  all  must  join  in  its  execution. 
A  different  rule  of  interpretation  prevails  when  the 
authority  is  of  a  public  nature. 

A  principal  may  give  authority  to  two  or  more  agents  as 
well  as  to  a  single  agent  to  do  an  act.  Where  two  or  more 
agents  are  appointed,  the  intention  of  the  principal  must 
determine  whether  the  authority  is  joint  or  several;  that 
is,  whether  it  must  be  exercised  by  all  or  may  be  exercised 

»  Flemyng  v.  Hector,  2  M.  &  W.  172;  Todd  v.  Bmly,  8  M.  &  W. 
505;  Davison  v.  Holden,  55  Conn.  103,  10  Atl.  515,  3  Am.  St.  Rep. 
40;  Bennett  v.  Lathrop,  71  Conn.  613,  42  Atl.  634,  71  Am.  St  Rep. 
222. 

10  Ray  v.  Powers,  134  Mass.  22.  See,  also,  cases  cited  note  g, 
supra. 

Where  a  college  class  at  a  class  meeting  voted  to  publish  a  book, 
the  members  voting  or  assenting  to  the  vote  were  liable  for  the  ex- 
pense at  the  suit  of  the  printer  under  a  contract  with  a  member 
elected  as  business  manager.  Willcox  v.  Arnold,  162  Mass.  577,  39 
N.  E.  414.  "Every  member  present  assents  beforehand  to  whatever 
the  majority  may  do.  *  *  *  If  he  would  escape  responsibility, 
*  *  *  he  ought  to  protest  and  throw  up  his  membership  on  the 
spot."  Eichbaum  v.  Irons,  6  Watts  &  S.  (Pa.)  67,  40  Am.  Dec.  540, 
per  Gibson,  C.  J.  See,  also,  Abels  v.  McKeen,  18  N.  J.  Eq.  462. 

Authority  may  be  shown  by  acquiesceuce  in  a  course  of  dealing 
from  which  assent  is  to  be  inferred.  Heath  v.  Goslin,  80  Mo.  310, 
50  Am.  Rep.  505. 


§  25)  JOINT  AGENTS.  113 

by  one.  Yet  such  powers  of  attorney  and  appointments  of 
agents  are  construed  with  great  strictness,1  and  where  au- 
thority is  given  to  two  or  more,  unless  a  different  intention  is 
expressed  or  is  clearly  to  be  inferred,  the  authority  is  pre- 
sumed to  be  joint.2  Thus,  if  a  power  of  attorney  is  given 
to  A.  and  B.  to  sell  or  convey  land,  and  the  instrument  con- 
tains nothing  to  indicate  that  one  alone  may  act,  both  must 
join  in  a  sale  or  conveyance.  On  the  other  hand,  if  an  in- 
tention to  confer  a  several  authority  is  manifest,  it  will  be 
given  effect.*  Thus,  if  authority  is  given  to  A.  and  B.,  or 
either  of  them,  execution  by  both  or  either  is  good.  And 
where  power  was  given  by  the  principal  to  fifteen  "jointly 
and  separately  *  *  *  to  sign  and  underwrite  all  such 
policies  as  they,  his  said  attorneys,  or  any  of  them,  should 
jointly  and  separately  think  proper,"  a  policy  executed  by 
four  was  held  binding.*  For  this  reason,  where  a  princi- 
pal appoints  a  partnership  as  his  agent,  each  partner  may 
execute,  since  the  act  of  one  partner  is  the  act  of  the  firm, 
and  it  is  to  be  assumed  that  the  principal  made  the  appoint- 
ment in  view  of  the  rules  ordinarily  governing  the  transac- 
tion of  the  business  of  a  partnership.5  Story  says  that  "in 
commercial  transactions  a  more  liberal  interpretation  in  fav- 
or of  trade  is  admitted,  as  thereby  public  confidence,  as  well 
as  general  convenience,  is  best  consulted."  6  This  more  lib- 
eral interpretation  rests,  as  in  other  cases,  upon  the  supposed 
intention  of  the  principal,  in  determining  which  the  character 

§  25.  i  For  example,  Coke  lays  it  down  that  a  power  of  attorney  to 
three  jointly  and  severally,  although  it  may  be  executed  by  all  or 
one,  may  not  be  executed  by  two.  Co.  Litt  181b. 

2  Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198:  Salisbury  v.  Bris- 
bane, 61  N.  Y.  617;  Rollins  v.  Phelps,  5  Minn.  463  (Gil.  373). 

«  Hawley  v.  Keeler,  53  N.  Y.  116;  French  v.  Price,  24  Pick.  (Mass.) 
13. 

«  Guthrie  v.  Armstrong,  5  B.  &  Aid.  628. 

B  Kennebec  Co.  v.  Banking  Co.,  6  Gray  (Mass.)  204;  Deakin  v.  Un- 
derwood. 37  Minn.  98,  33  N.  W.  318,  5  Am.  St  Rep.  827. 

«  Story,  Ag.  §  44. 
TDT.P.&  A.— 8 


114  WHAT  ACTS   CAN   BE   DONE   BY   AGENT.  (Ch.  4 

of  the  agency  is  a  material  circumstance.     The  rules  govern- 
ing the  construction  of  authority  will  be  considered  later.7 

The  rules  which  relate  to  the  authority  of  directors  as 
agents  of  a  corporation  rest  upon  considerations  which  do 
not  apply  to  other  private  agents.* 

Same — Public  Agents. 

A  different  rule  of  construction  or  interpretation  prevails 
where  the  agency  is  of  a  public  nature.  This  distinction 
was  pointed  out  by  Coke,  who  gave  as  an  illustration  the 
case  of  a  warrant  by  a  sheriff  "to  four  or  three  jointly  or 
severally  to  arrest  the  defendant,"  two  of  whom  might  ar- 
rest him,  "because  it  is  for  the  execution  of  justice,  and  there- 
fore shall  be  more  favorably  expounded  than  when  it  is  only 
for  private."  *  The  most  frequent  application  of  the  distinc- 
tion is  where  authority  is  to  be  exercised  by  persons  forming 
a  board  or  other  body  constituted  by  law,  such  as  inspectors, 
commissioners,  overseers  of  the  poor,  assessors,  and  the  like. 
In  these  cases,  unless  the  law  otherwise  provides,  if  all  meet, 
the  act  of  the  majority  will  bind.10  And,  if  all  have  been 

T  Post.  p.  166  et  seq. 

*  Directors  can  bind  the  corporation  only  when  regularly  assem- 
bled at  a  board  meeting.  Unless  this  meeting  is  a  stated  one,  notice 
must  be  given  to  each  director,  but  if  all  are  present  want  of  notice 
is  immaterial.  A  majority  is  a  quorum,  and  a  majority  of  the 
quorum  may  bind  the  corporation.  These  rules  apply  when  the  char- 
ter does  not  provide  otherwise.  Clark,  Corp.  488  et  seq.  Generally 
speaking,  a  committee  of  a  corporation  is  subject  to  the  same  rules. 
McNeil  v.  Chamber  of  Commerce,  154  Mass.  277,  28  N.  E.  245,  13  L. 
R.  A.  559. 

»  Co.  Litt.  181b.  A  warrant  of  distress  addressed  to  two  may  be 
executed  by  one.  Lee  v.  Vesey,  1  H.  &  N.  90. 

10  King  v.  Beeston,  3  T.  R.  592  (church  wardens  and  overseers  of 
a  parish);  Grindley  v.  Barker,  1  B.  &  P.  229  (triers  or  inspectors  of 
leather);  Corlis  v.  Kent  Waterworks,  7  B.  &  C.  314;  Downing  v. 
Rugar,  21  Wend.  (N.  Y.)  178,  34  Am.  Dec.  223;  Crocker  v.  Crane,  21 
Wend.  (N.  Y.)  211,  34  Am.  Dec.  228;  Sprague  v.  Bailey.  19  Pick. 
(Mass.)  436;  Williams  v.  School  Dist,  21  Pick.  (Mass.)  75,  32  Am. 
Dec.  243;  Cooley  v.  O'Connor,  12  Wall.  (U.  S.)  391,  20  L.  Ed.  446; 


§  25)  JOINT  AGENTS.  115 

duly  notified  to  meet,  it  is  generally  held  that  an  act  per- 
formed by  a  majority  who  have  met  is  valid.11 

Martin  v.  Lemon,  26  Conn.  192;   Scott  v.  Lessee,  1  Doug.  (Mich.)  119; 
Soens  v.  City  of  Racine,  10  Wis.  271. 

11  Williams  v.  School  Dist,  21  Pick.  (Mass.)  75,  32  Am.  Dee.  243; 
Damon  v.  Inhabitants  of  Granby,  2  Pick.  (Mass.)  345;  George  v.  School 
Dist,  6  Mete.  (Mass.)  497;  Martin  v.  Lemon,  26  Conn.  192.  The  author- 
ities are  fully  collected  and  discussed  in  First  Nat.  Bank  v.  Town  of 
Mt.  Tabor,  52  Vt  87,  36  Am.  Rep.  734.  This  was  an  action  upon  in- 
terest coupons  attached  to  bonds  purporting  to  have  been  issued  by 
defendant  town.  Plaintiff  relied  upon  an  instrument  of  assent,  to 
which  was  appended  a  certificate  of  two  of  three  commissioners  ap- 
pointed under  an  act  making  such  certificate  conclusive  evidence  of 
the  facts  set  forth.  It  was  held  that  the  act  of  two,  the  third  shar- 
ing in  the  deliberations  of  the  commissioners,  but  refusing  to  concur 
in  their  decision,  was  a  sufficient  compliance  with  the  law. 


116  DELEGATION  BY  AGENT — SUBAGENTS.         (Gil-  5 

CHAPTER  V. 

DELEGATION  BY  AGENT— SUBAGENTS. 

26.  Delegation  of  Authority. 

27-28.  When  Authority  to  Delegate  will  be  Implied. 

29.  Responsibility  for  Acts  of  Subagent — Privity  of  Contract. 

30.  When  Authority  to  Create  Privity  of  Contract  will  be  Im- 

plied. 

DELEGATION  OF  AUTHORITY. 

26.  An  agent  has  no  power  to  delegate  his  authority  to  a 
snbagent,  or  to  appoint  a  deputy  or  a  substitute,  to 
do  any  act  on  behalf  of  his  principal,  unless  author- 
ity so  to  do  has  been  expressly  or  impliedly  conferred. 

Delegata  Potestas  non  Potest  Delegari. 

As  we  have  seen,  what  a  man  can  do  in  his  own  right  he 
can  as  a  rule  delegate  to  an  agent,1  and  the  act  of  the  agent, 
within  the  scope  of  the  authority  conferred,  is  in  law  the  act 
of  the  principal.  Qui  facit  per  alium  facit  per  se.  And, 
conversely,  an  act  which  a  person  performs  on  behalf  of 
another  is  not  the  act  of  and  binding  upon  the  other,  un- 
less he  has  authorized  that  person  to  perform  it.  It  follows 
that  an  act  which  an  agent  causes  to  be  performed  by  a 
third  person  on  behalf  of  his  principal  is  not  the  act  of  the 
principal,  unless  he  has  authorized  the  agent  to  cause  the 
act  so  to  be  done;  in  other  words,  unless  the  principal  has 
authorized  the  agent  to  appoint  a  subagent  to  do  the  act.2 

§  26.     lAnte,  p.  90. 

2  "If  a  man  is  to  be  held  liable  for  the  acts  of  his  servants,  he  cer- 
tainly should  have  the  exclusive  right  to  determine  who  they  shall  be. 
Hence,  we  think,  in  every  well-considered  case  where  a  person  has 
been  held  liable,  under  the  doctrine  referred  to  [respondeat  superior], 
for  the  negligence  of  another,  that  other  was  engaged  either  by  the 
defendant  personally  or  by  others  by  his  authority,  express  or  im- 
plied." Haluptzok  v.  Railway  Co.,  55  Minn.  446,  57  N.  W.  144,  26 
L.  R.  A.  739,  per  Mitchell,  J. 


§§  27-28)      WHEN  AUTHORITY  TO  DELEGATE  IMPLIED.  117 

An  agent,  as  such,  has  no  power  to  appoint  a  subagent.8 
Delegata  potestas  non  potest  delegari — delegated  authority 
cannot  be  delegated.  This  maxim  has,  of  course,  no  appli- 
cation where  power  to  delegate  has  been  expressly  conferred 
or  may  reasonably  be  implied. 

WHEN   AUTHORITY   TO    DELEGATE   WILL   BE   IMPLIED. 

27.  MINISTERIAL    ACTS.    Authority    to    delegate    the    per- 

formance of  acts  which  are  ministerial,  or  do  not  in- 
volve the  exercise  of  discretion,  will  be  implied  unless 
such  authority  is  expressly  denied. 

28.  OTHER    ACTS.    Authority    to    delegate    the    performance 

of  acts  -which  involve  the  exercise  of  discretion  will 
be  implied  when,  from  the  circumstances  of  the  par- 
ticular agency,  it  may  reasonably  be  inferred  that  the 
principal  intends  to  confer  such  authority. 

Distinction  between  Discretionary  and  Ministerial  Acts. 

The  appointment  of  an  agent  is  usually  made  because  of 
his  supposed  fitness,  as  by  reason  of  his  possession  of  judg- 
ment, skill,  integrity,  or  other  personal  qualifications.  Inas- 
much as  confidence  in  the  particular  person  employed  is  the 
basis  of  the  appointment,  authority  to  delegate  the  perform- 
ance of  the  subject-matter  of  the  agency  will  not,  in  the  ab- 
sence of  peculiar  circumstances,  be  implied.1  Thus,  where 

«  Palllser  v.  Ord,  Bunbury,  166. 

§§  27-28.  i  Catlin  v.  Bell,  4  Camp.  183;  Henderson  v.  Barnwell, 
1  Y.  &  J.  387;  Emerson  v.  Hat  Co.,  12  Mass.  237,  7  Am.  Dec.  66; 
Appleton  Bank  v.  McGilvray,  4  Gray  (Mass.)  518;  Wright  v.  Boyn- 
ton,  37  N.  H.  9,  72  Am.  Dec.  319:  Lewis  v.  Ingersoll,  3  Abb.  Dec. 
(N.  Y.)  55;  Sayre  v.  Nichols,  7  Cal.  535,  68  Am.  Dec.  280;  Lynn  v. 
Burgoyne,  13  B.  Mon.  (Ky.)  400;  Ruthven  v.  Insurance  Co.,  92  Iowa. 
316,  60  N.  W.  663;  Waldman  v.  Insurance  Co.,  91  Ala.  170,  8  South. 
666,  24  Am.  St.  Rep.  883;  Fargo  v.  Cravens,  9  S.  D.  646,  70  N.  W. 
1053. 

Where  plaintiff  intrusted  to  a  shipmaster  trading  to  the  West  Indies 
goods,  which  he  undertook  to  sell  for  her  there,  it  was  not  a  defense, 
in  an  action  for  an  accounting,  that  defendant,  not  being  able  to  sell 
them  there,  had  sent  them  elsewhere  in  search  of  a  market,  where 


118  DELEGATION  BY  AGENT SUBAGENTS.  (Ch.  5 

goods  are  consigned  to  a  factor,  the  factor  has  ordinarily 
no  authority  to  deliver  over  the  goods  to  a  third  person  for 
sale,  and  such  a  disposition  of  the  goods  would  be  a  conver- 
sion.2 So,  a  person  authorized  to  sell  land  must  exercise 
his  own  judgment  and  discretion,  and  cannot  delegate  the 
performance  of  his  agency  to  another.8  So,  a  person  au- 
thorized to  accept  bills  of  exchange  or  make  promissory 
notes  must  exercise  his  judgment  as  to  the  necessity  or  pro- 
priety of  accepting  a  bill  or  executing  a  note,  and,  in  the 
absence  of  circumstances  peculiar  to  the  particular  agency, 
authority  to  delegate  the  performance  of  these  duties  will 
not  be  implied.4  So,  an  agency  to  collect  and  receive  money, 
reposing  in  personal  trust  and  confidence,  may  not  be  dele- 
gated without  authority.5 

they  were  destroyed  by  an  earthquake.  Lord  Ellenborough  clearly 
held  that,  there  being  a  special  confidence  reposed  in  the  defendant, 
he  had  no  right  to  hand  them  over  to  another,  and  to  give  them  a 
new  destination.  Catlin  v.  Bell,  supra. 

"One  who  has  a  blank  power  or  authority  from  another  to  do  any 
act  must  execute  it  himself,  and  cannot  delegate  it  to  a  stranger;  for, 
this  being  a  trust  or  confidence  reposed  in  him  personally,  it  cannot 
be  assigned  to  one  whose  integrity  or  ability  may  not  be  known  to  the 
principal,  and  who,  if  he  were  known,  might  not  be  selected  by  him 
for  such  a  purpose.  The  authority  is  expressly  personal,  unless,  from 
the  express  language  used,  or  from  the  fair  presumptions  growing 
out  of  the  particular  transaction,  a  broader  power  was  intended  to 
be  conferred."  Wright  v.  Boynton,  supra,  per  Bell,  J. 

A  contract  between  an  agent  and  a  third  person,  giving  the  latter 
entire  control  of  the  business  of  the  agency,  although  unauthorized, 
and  hence  not  binding  upon  the  principal,  held  not  void  as  against 
public  policy.  Peterson  v.  Christensen,  26  Minn.  377,  4  N.  W.  623. 

2  Cockran  v.  Irlam,  2  M.  &  S.  301;  Warner  v.  Martin,  11  How. 
223,  13  L.  Ed.  667;  Campbell  v.  Reeves,  3  Head  (Tenn.)  226.  See 
Southern  v.  How,  Cro.  Jac.  468. 

»  Tynan  v.  Dulling  (Tex.  Civ.  App.)  25  S.  W.  465,  818;  Carroll  v. 
Tucker,  3  Misc.  Rep.  397,  21  N.  Y.  Supp.  952. 

*  Emerson  v.  Hat  Co.,  12  Mass.  237,  7  Am.  Dec.  66;  Commercial 
Bank  v.  Norton,  1  Hill  (N.  Y.)  501. 

6  Lewis  v.  Ingersoll,  3  Abb.  Dec.  50;  Fellows  v.  Northrup,  39  N. 
Y.  117. 

Where  the  agency  is  general,  to  take  charge  of  and  manage  the 


§§27-28)      WHEN  AUTHORITY  TO  DELEGATE  IMPLIED.  119 

On  the  other  hand,  if  an  act  is  purely  ministerial,  and 
consequently  does  not  involve  the  exercise  of  judgment  or 
discretion,  it  is  to  be  assumed  that  the  principal  is  willing  to 
have  it  performed  by  any  person  whom  the  agent  may  ap- 
point. The  principal  may,  of  course,  so  limit  the  authority 
that  every  such  act  must  be  performed  by  the  very  hand  of 
the  agent.  But,  in  the  absence  of  such  express  limitation, 
authority  to  delegate  the  performance  of  ministerial  acts  is 
implied.'  Thus,  an  agent  having  authority  to  make  con- 
tracts, accept  bills  of  exchange,  or  execute  promissory  notes, 
may,  after  exercising  his  judgment  as  to  the  terms  of  a  con- 
tract or  the  propriety  of  accepting  a  bill  or  executing  a  note, 
delegate  to  another  the  mechanical  duty  of  reducing  the 
contract  to  writing  or  signing  the  paper.7  So,  an  agent  au- 
thorized to  sell  land,  who  has  examined  the  land  and  fixed 
the  price,  may  avail  himself  of  the  services  of  another  to 
find  a  purchaser  and  conclude  a  sale  upon  the  terms  fixed.8 

Wften  Power  to  Delegate  will  be  Implied. 

Although  power  to  delegate,  except  as  to  ministerial  acts, 
will  not  be  implied  as  a  mere  incident  to  the  authority  of  an 
agent,  it  may  be  implied  from  the  circumstances  of  the 
particular  agency,  and  will  be  implied  whenever,  from  the 

business  of  the  principal,  power  to  delegate  may  be  implied.  McCon- 
nell  v.  Mackin,  22  App.  Div.  537,  48  N.  Y.  Supp.  18. 

«  Lord  v.  Hall,  8  C.  B.  627;  Mason  v.  Joseph,  1  Smith,  406;  Lyon 
v.  Jerome,  26  Wend.  (N.  Y.)  485.  37  Am.  Dec.  271;  Williams  v.  Wood, 
16  Md.  220;  Newell  v.  Smith,  49  Vt  255;  Grinnell  v.  Buchanan.  1 
Daly  (N.  Y.)  538;  Eldridge  v.  Hoi  way,  18  111.  445;  Grady  v.  Insur- 
ance Co.,  60  Mo.  116;  Weaver  v.  Carnall,  35  Ark.  198,  37  Am.  Rep. 
22.  Cf.  Rossiter  v.  Trafalgar  L.  Ass'n,  27  Beav.  377,  381. 

7  Exp.  Button,  2  Cox,  84;  Lord  v.  Hall,  2  C.  &  K.  698;  Commercial 
Bank  v.  Norton,  1  Hill  (N.  Y.)  501;  Sayre  v.  Nichols,  7  Cal.  535,  68 
Am.  Dec.  280;  Norwich  University  v.  Denny,  47  Vt  13  (subscription 
agreement);  Grady  v.  Insurance  Co.,  60  Mo.  116  (insurance  policy). 

«  Renwick  v.  Bancroft,  56  Iowa,  527,  9  N.  W.  367. 

An  agent  to  sell  land  may  employ  another  to  point  out  the  land 
to  a  purchaser.  McKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  6 
L.  R.  A.  121,  17  Am.  St  Rep.  178. 


120          DELEGATION  BY  AGENT — SUBAGENTS.        (Ch.  5 

peculiar  circumstances,  it  may  reasonably  be  inferred  that 
the  principal  intended  such  power  to  exist.9  The  question 
turns,  as  do  other  questions  involving  the  power  of  agents, 
upon  the  construction  and  interpretation  of  the  particular 
grant  of  authority.10 

Thus,  power  of  delegation  may  be  implied  from  the  previ- 
ous course  of  dealing,  or  from  the  knowledge  of  the  prin- 
cipal that  an  agent  is  in  the  habit  of  conducting  his  business 
by  means  of  subagents.11  It  will  be  implied  where,  from 
the  nature  of  the  business  which  is  the  subject  of  the  agency, 
it  is  necessary  or  reasonable  that  it  should  be  conducted  by 
means  of  subagents.12  For  example,  where  a  note  is  de- 
posited with  a  bank  for  collection,  authority  to  employ  a 
notary  to  protest  it  in  case  of  dishonor  is  necessarily  im- 
plied,18 and  if  the  note  is  payable  at  a  distant  place  authority 
to  employ  the  agency  of  a  bank  at  the  place  of  payment 
is  necessarily  implied.14  So,  authority  to  prosecute  a  suit 
implies  authority  to  employ  an  attorney  to  conduct  it.1B 
And,  if  a  principal  knows  that  the  business  which  he  in- 
trusts to  an  agent  is  so  extensive  that  he  cannot  transact 

•  De  Bussche  v.  Alt,  8  Ch.  D.  286,  per  Thesiger,  L.  J. 

10  Post,  p.  166. 

11  Quebec  &  R.  R.  Co.  v.  Quirm,  12  Mo.  P.  C.  232;   Warner  v.  Mar- 
tin, 11  How.  (U    S.)  223,  13  L.  Ed.  667;   Johnson  v.  Cunningham,  1 
Ala.  249;   Loomis  v.  Simpson,  13  Iowa,  532. 

12  De  Bussche  v.  Alt,  8  Ch.  D.  286;   Quebec  &  R.  R.  Co.  v.  Quinn, 
12  Mo.  P.  C.  223;    Rossiter  v.  Trafalgar  L.  A.  Ass'n,  27  Beav.  377; 
Johnson  v.  Cunningham,  1  Ala.  249;  Planters'  &  Farmers'  Nat  Bank 
V.  Bank,  75  N.  C.  534. 

A  stockbroker  may  act  through  a  subagent  where  the  purchase  or 
sale  is  to  be  made  in  a  distant  city.  Rosenstock  v.  Torniey,  32  Md. 
169,  3  Am.  Rep.  125. 

is  Warren  Bank  v.  Bank,  10  Gush.  (Mass.)  582;  Baldwin  v.  Bank, 
1  La.  Ann.  13,  45  Am.  Dec.  72. 

i*  Dorchester  &  Milton  Bank  v.  Bank,  1  Gush.  (Mass.)  177.  See, 
also,  cases  cited,  p.  129,  notes  6  and  7. 

i  o  Inhabitants  of  Buckland  v.  Inhabitants  of  Con  way,  16  Mass. 
896 


§§  27-28)      WHEN  AUTHORITY  TO  DELEGATE  IMPLIED.  121 

it  without  employing  subagents,  authority  to  do  so  is  im- 
plied.18 

Power  to  delegate  will  be  implied  where  the  employment 
of  a  subagent  is  justified  by  the  usage  of  the  business  or 
trade  in  which  the  agent  is  employed,17  provided  the  usage 
is  not  inconsistent  with  the  express  terms  of  the  authority.18 
Thus,  where,  by  usage  of  trade,  a  factor  is  authorized  to  em- 
ploy  another  person  to  dispose  of  the  property,  such  author- 
ity is  implied.18  In  many  cases  where  authority  is  to  be  im- 
plied from  the  nature  of  the  business  it  may  also  be  implied 
from  usage  or  custom. 

Same — Unforeseen  Emergencies. 

It  is  said  that  power  to  delegate  will  also  be  implied  where, 
in  the  course  of  the  agency,  unforeseen  emergencies  arise 
which  impose  upon  the  agent  the  necessity  of  employing  a 
subagent.20  But  the  limits  of  this  doctrine  are  not  clearly 
defined,  and  it  must  be  applied  with  caution.  In  this  country 

i«  Bodine  v.  Insurance  Co.,  51  N.  Y.  117,  10  Am.  Rep.  566;  Arff  v. 
Insurance  Co.,  125  N.  Y.  57,  25  N.  E.  1073,  10  L.  R.  A.  609,  21  Am. 
St.  Rep.  721;  Grady  v.  Insurance  Co.,  60  Mo.  116. 

"We  know,  according  to  the  ordinary  course  of  business,  that  in- 
surance agents  frequently  have  clerks  to  assist  them,  and  that  they 
could  not  transact  their  business  if  obliged  to  attend  to  all  the  de- 
tails in  person;  and  these  clerks  can  bind  their  principals  in  any  of 
the  business  which  they  are  authorized  to  transact.  An  insurance 
agent  can  authorize  his  clerk  to  contract  for  risks,  to  deliver  policies, 
to  collect  premiums,  and  to  take  payment  of  premiums  in  cash  or 
securities,  and  to  give  credit  for  premiums,  or  to  demand  cash;  and 
the  act  of  the  clerk  in  all  such  cases  Is  the  act  of  the  agent,  and  binds 
the  company  just  as  effectually  as  if  it  were  done  by  the  agent  in  per- 
son. The  maxim  of  'Delegatus  mm  potest  delegare'  does  not  apply 
In  such  a  case."  Bodine  v.  Insurance  Co.,  supra,  per  Earl,  J. 

IT  Warner  v.  Martin,  11  How.  (U.  S.)  223,  13  L.  Ed.  667;  Johnson 
v.  Cunningham,  1  Ala.  249;  Darling  v.  Stanwood,  14  Allen  (Mass.) 
504;  Smith  v.  Sublett,  28  Tex.  163. 

is  Emerson  v.  Hat  Co.,  12  Mass.  237,  7  Am.  Dec.  66. 

»•  Laussatt  v.  Llppincott,  6  Serg.  &  R.  (Pa.)  386,  9  Am.  Dec.  440. 

20  De  Bussche  v.  Alt,  8  Ch.  D.  286,  per  Thesiger,  L.  J.;  Story,  Ag. 
§  201. 


122  DELEGATION   BY  AGENT SUBAGENTS.  (Oh.  5 

it  has  sometimes  been  held  that  the  conductor  of  a  train  has 
implied  authority,  on  the  ground  of  necessity,  in  such  an 
emergency  as  the  sickness  or  absence  of  a  brakeman,  to  em- 
ploy another  person  to  take  his  place,  and  that  such  person 
for  the  time  being  is  the  servant  of  the  railway  company.21 
In  a  recent  English  case,22  where  the  driver  of  the  defend- 
ants' omnibus,  being  the  worse  for  liquor,  was  ordered  by  a 
police  inspector  to  discontinue  driving,  it  was  held  by  the 
trial  court  that  under  the  circumstances  the  conductor  and 
driver  had  implied  authority  to  authorize  a  volunteer  to 
drive  the  omnibus  home,  a  distance  of  a  quarter  of  a  mile, 
and  that  the  defendants  were  liable  for  an  injury  caused  by 
his  careless  driving  to  a  foot  passenger.  In  the  court  of  ap- 
peal 2S  the  judgment  was  reversed  upon  the  ground  that  the 
evidence  did  not  justify  a  finding  that  there  was  a  neces- 
sity to  delegate  the  duty  of  driving  the  omnibus.  The  court 
said  that  it  was  not  necessary  to  decide  "whether,  if  there 

21  Sloan  v.  Railway  Co.,  62  Iowa,  728,  16  N.  W.  331;   Fox  v.  Rail- 
way Co.,  86  Iowa,  368,  53  N.  W.  259,  17  L.  R.  A.  289;   Georgia  Pac. 
Ry.  Co.  v.  Propst,  83  Ala.  518,  3  South.  764;  Id.,  85  Ala.  203,  4  South. 
711. 

In  Sloan  v.  Railway  Co.,  supra,  the  regular  brakeman  absented 
himself  for  a  week,  and  plaintiff  took  his  place  with  the  knowledge 
and  consent  of  the  conductor,  but  of  no  superior  officer.  On  the  sixth 
day  of  his  employment  plaintiff  was  ordered  by  the  conductor  to  per- 
form a  duty,  in  discharging  which  he  was  injured.  It  was  held  that 
he  could  recover  under  a,  statute  making  railway  corporations  liable 
for  damages  sustained  by  employes  in  consequence  of  the  neglect 
of  other  employe's.  This  case  certainly  pushes  the  doctrine  of  au- 
thority of  necessity  beyond  its  rational  limits. 

22  Gwilliam  v.  Twist  [1895]  1  Q.  B.  577. 

28  Gwilliam  v.  Twist  [1895]  2  Q.  B.  84.  Lord  Escher  said:  "I 
am  very  much  inclined  to  agree  with  the  view  taken  by  Eyre,  C.  J., 
in  the  case  of  Nicholson  v.  Chapman,  2  H.  Bl.  254,  and  by  Parke,  B., 
in  the  case  of  Hawtayne  v.  Bourne,  7  M.  &  W.  595,  to  the  effect  that 
this  doctrine  of  authority  by  reason  of  necessity  is  confined  to  cer- 
tain well-known  exceptional  cases,  such  as  those  of  the  master  of  a 
ship  or  the  acceptor  of  a  bill  of  exchange  for  honor  of  the  drawer." 
See  ante,  p.  39;  post,  p.  402. 


§  29)  RESPONSIBILITY   FOR  ACTS  OF  SUBAGENT.  123 

were  a  necessity  for  a  servant  to  delegate  his  duty  to  another 
person,  that  delegation  would  make  that  other  person  a 
servant  of  the  master  so  as  to  render  the  latter  responsible 
for  his  acts,"  but  inclined  to  the  opinion  that  the  doctrine  of 
authority  by  reason  of  necessity  did  not  apply  to  such  a  state 
of  facts. 


RESPONSIBILITY     FOB    ACTS     OF     SUBAGENT— PRIVITY 
OF   CONTRACT. 

£9.  Where  a  subagent  i»  appointed  by  authority  of  the  prin- 
cipal, the  subagent  is,  so  far  as  relates  to  third  per- 
sons, the  agent  of  the  principal,  and  the  acts  of  the 
subagent  are  binding  npon  the  principal;  bnt  wheth- 
er, as  bet-ween  principal  and  subagent,  the  relation  of 
principal  and  agent  is  created,  so  that  the  snbagent  is 
responsible  to  the  principal,  depends  npon  whether 
the  agent  has  been  authorized  to  employ  the  snbagent 
on  the  principal's  behalf — that  is,  to  create  privity  of 
eontract  between  them— or  has  been  authorized  simply 
to  employ  a  snbagent  on  his  own  responsibility. 

If  an  agent  without  authority  employs  a  subagent,  the 
latter  assumes  no  obligation  towards  the  principal,  since 
there  is  no  privity  of  contract  between  them.1  The  sub- 
agent  is  responsible  only  to  the  agent,  who  is  his  employer, 
and  he  in  turn  is  responsible  to  the  principal  for  the  acts 
of  the  subagent.2  It  does  not  follow,  however,  that  because 

§  29.     i  As  to  the  duties  of  agent  to  principal,  post.  p.  395. 

2  Stevens  v.  Babcock,  3  B.  &  Ad.  354;  Appleton  Bank  v.  McGil- 
vray,  4  Gray  (Mass.)  518,  64  Am.  Dec.  92;  Barnard  v.  Coffin,  141 
Mass.  37,  6  N.  E.  364,  55  Am.  Rep.  443. 

Defendants  were  employed  by  plaintiff  to  aid  him  in  selling  land 
by  obtaining  offers  and  communicating  them  to  plaintiff,  together 
with  such  information  as  they  could  readily  obtain,  and  by  consum 
mating  a  sale  in  case  of  acceptance.  Defendants  employed  O.,  who 
obtained  an  offer  for  $22.50,  but  reported  to  defendants  that  he  had 
received  an  offer  or  $10,  per  acre,  which  defendants  bona  fide  re- 
ported to  plaintiff,  advising  him  it  was  a  fair  price,  and  a  sale  was 
consummated,  O.  accounting  to  defendants,  and  they  to  plaintiff,  on 


124  DELEGATION   BY  AGENT SUBAGENTS.  (Ch.  5 

the  employment  of  a  subagent  is  authorized  privity  of  con- 
tract is  created  between  him  and  the  principal,  so  that  he  is 
responsible  to  the  principal,  or  that  the  agent  is  discharged 
from  responsibility  for  the  acts  of  the  subagent. 

Whenever  the  employment  is  authorized,  the  acts  of  the 
subagent  are,  indeed,  binding  upon  the  principal;  or,  in 
other  words,  the  subagent  is,  so  far  as  relates  to  third  per- 
sons, the  agent  of  the  principal.  But  whether,  as  between 
principal  and  subagent,  the  relation  of  principal  and  agent 
is  created  by  the  employment  depends  upon  the  nature  of 
the 'authority  conferred  upon  the  agent.  The  principal  may 
confer  authority  upon  any  terms  and  subject  to  any  condi- 
tions which  he  sees  fit  to  impose.  He  may,  on  the  one  hand, 
authorize  the  employment  of  a  subagent  on  his  own  b  half. 
In  such  case  by  the  employment  privity  of  contract  is  created 
between  principal  and  subagent,  who  becomes  thereby  the 
agent  of  and  responsible  to  the  principal,  and  the  agent 
discharges  his  whole  duty  if  he  exercises  reasonable  care 
in  the  selection  of  the  subagent,  and  is  not  responsible  for 
his  acts  or  defaults.  On  the  other  hand,  the  principal  may 
authorize  the  employment  of  a  subagent  simply  on  the  agent's 
behalf;  that  is,  at  the  agent's  risk  and  upon  his  responsibility. 
In  such  case  the  principal  is,  of  course,  bound  by  the  acts  of 
the  subagent,  because  he  has  consented  to  be  bound  by  them ; 
but  no  privity  of  contract  is  created  between  him  and  the 
subagent,  because  he  has  not  authorized  the  agent  to  make 
a  contract  of  employment  to  which  he  (the  principal)  shall 
be  a  party.  Privity  of  contract  in  such  case  exists  only  be- 
tween the  agent  and  the  subagent,  and  the  agent  is  responsi- 
ble for  the  acts  and  defaults  of  the  subagent,  because  such 
was  the  intention  of  the  principal  and  the  undertaking  of  the 
agent. 

the  basis  of  $10,  though  O.  obtained  $22.75  per  acre.  Held  that,  if  O. 
was  employed  without  plaintiff's  express  or  implied  consent,  there 
being  no  usage  or  necessity  therefor,  no  privity  was  created  between 
plaintiff  and  O.,  and  defendants  were  liable  for  the  balance  of  the 
price  received  by  O.  Barnard  v.  Coffin,  supra. 


§  29)  RESPONSIBILITY   FOR  ACTS   OF   SUBAGENT.  125 

The  same  principles  apply  when  the  authority  of  an  agent 
to  employ  a  subagent  is  derived  from  ratification.  The  prin- 
cipal may,  of  course,  ratify  the  unauthorized  employment 
of  a  subagent;  and,  if  he  does  so  with  knowledge  that  the 
subagent  was  employed  as  his  agent,  the  ratification  will 
be  equivalent  to  previous  authority  to  create  privity  of  con- 
tract between  them;  but  if  the  subagent  was  not  so  em- 
ployed, or  if  the  principal  ratifies  without  such  knowledge, 
the  ratification  will  be  equivalent  only  to  previous  authority 
to  employ  a  subagent  on  the  agent's  own  responsibility,  and 
not  to  create  privity  of  contract.* 

If  the  terms  of  agency  were  always  fully  expressed,  no 
difficulty  in  applying  these  principles  would  arise;  but  be- 
cause the  intention  of  the  parties,  and  consequently  the  na- 
ture of  the  authority,  is  ordinarily  matter  of  inference,  dif- 
ficult questions  of  fact  are  presented  for  determination. 

»  "It  Is  argued  that,  as  the  plaintiff  knew  before  he  signed  the 
deed  that  the  sale  was  made  by  Ochs,  the  plaintiff,  by  confirming  the 
sale  and  signing  the  deed,  ratified  the  employment  of  Ochs.  If  the 
plaintiff  understood  that  Ochs  was  employed  by  the  defendants  as 
his  agent,  then  these  acts  of  the  plaintiff  might  be  held  to  be  a  rati- 
fication of  his  employment,  and  equivalent  to  an  authority  to  the 
defendants  to  employ  Ochs  as  the  agent  of  the  plaintiff.  But  if  the 
plaintiff  understood  that  the  defendants  employed  Ochs  as  their  agent 
to  assist  them  in  transacting  the  business  which  they  had  undertaken, 
then  these  acts  of  the  plaintiff  might  only  show  that  the  plaintiff  was 
willing  that  the  defendants  should  transact  the  business  by  means 
of  their  servants  or  agents  for  whom  they  should  be  responsible;  and 
It  was  competent  for  the  court,  on  the  evidence,  to  find  that  this  was 
the  understanding  and  intention  of  the  plaintiff."  Barnard  v.  Coffin, 
141  Mass.  37,  6  N.  E.  364,  55  Am.  Rep.  443,  per  Field,  J. 


126  DELEGATION  BY  AGENT — SUBAGENTS.  (Oh.  5 


WHEN  AUTHORITY  TO  CREATE  PRIVITY  OF  CONTRACT 
WILL  BE  IMPLIED. 

3O.  Authority  to  create  privity  of  contract  between  principal 
and  snbagent  will  be  implied  when,  from  the  circum- 
stances of  the  particular  agency,  it  may  reasonably  be 
inferred  that  the  principal  intends  to  confer  such  au- 
thority. 

Where,  by  power  of  attorney  or  other  formal  instrument, 
the  employment  of  a  substitute  is  expressly  provided  for, 
it  is  clear  that  the  authority  of  the  attorney  or  agent  ex- 
tqnds  to  establishing  a  direct  relation  between  principal  and 
substitute,  and  that  the  agent  is  responsible  only  for  select- 
ing a  proper  substitute.1  In  most  cases,  however,  the  au- 
thority of  an  agent  to  employ  subagents  is  implied  from  the 
character  of  the  business,  the  usages  of  trade  or  other  cir- 
cumstances peculiar  to  the  agency,  and  the  nature  of  that 
authority,  depending  upon  the  intention  of  the  parties,  must 
be  inferred  from  the  facts  of  the  particular  case.2  Thus, 

§  30.     i  Wicks  v.  Hatch,  62  N.  Y.  535;   Story,  Ag.  §  201. 

2  De  Bussche  v.  Alt,  8  Ch.  Div.  286;  New  Zealand  &  A.  L.  Co.  v. 
Watson,  7  Q.  B.  D.  374;  Appleton  Bank  v.  McGilvray,  4  Gray  (Mass.) 
518,  64  Am.  Dec.  92;  Barnard  v.  Coffin,  141  Mass.  37,  6  N.  E.  364. 
55  Am.  Rep.  443;  Loomis  v.  Simpson,  13  Iowa,  532;  National  S.  S. 
Co.  v.  Sheahan,  122  N.  Y.  461,  25  N.  E.  858,  10  L.  R.  A.  782.  Cf. 
Bank  of  Kentucky  v.  Express  Co.,  93  U.  S.  174,  23  L.  Ed.  872. 

"But  the  exigencies  of  business  do  from  time  to  time  render  neces- 
sary the  carrying  out  of  the  instructions  of  a  principal  by  a  person 
other  than  the  agent  originally  instructed  for  that  purpose,  and 
where  that  is  the  case  the  reason  of  the  thing  requires  that  the  rule 
[delegatus  non  potest  delegare]  should  be  relaxed,  so  as  on  the  one 
hand  to  enable  the  agent  to  appoint  what  has  been  termed  a  'sub- 
agent'  or  'substitute'  (the  latter  of  which  designations,  although  it 
does  not  exactly  denote  the  legal  relationship  of  the  parties,  we  adopt 
for  want  of  a  better,  and  for  the  sake  of  brevity),  and,  on  the  other 
hand,  to  constitute,  In  the  interests  and  for  the  protection  of  the  prin- 
cipal, a  direct  privity  of  contract  between  him  and  such  substitute. 
And  we  are  of  opinion  that  an  authority  of  the  effect  referred  to  may 
and  should  be  implied  where,  from  the  conduct  of  the  parties  to  the 


§  30)        AUTHORITY  TO  CREATE  PRIVITY  OF  CONTRACT.  127 

where  authority  to  employ  a  subagent  is  to  be  implied  from 
the  course  of  dealing  of  the  parties  or  from  the  usages  of 
trade,  it  may  be  clear  from  the  particular  course  of  dealing 
or  usage  that  the  principal  intends,  or  must  be  deemed  to 
intend,  to  authorize  the  agent  to  create  privity  of  contract.* 
On  the  other  hand,  if  the  agent  has  undertaken  the  perform- 
ance of  a  particular  piece  of  business  for  his  employer,  and 
thus  stands  towards  him,  as  it  were,  in  the  relation  of  inde- 
pendent contractor,  it  is  clear  that  authority  to  employ  sub- 
agents  does  not  include  authority  to  create  privity  of  con- 
tract between  them  and  his  employer,  since  by  the  very  na- 
ture of  the  agent's  contract  he  is  to  employ  them  upon  his 
own  responsibility.4  It  is,  indeed,  often  declared  that,  when- 
ever authority  to  employ  subagents  is  expressed  or  may 
be  implied,  privity  of  contract  between  principal  and  sub- 
original  contract  of  agency,  the  usage  of  trade,  or  the  nature  of  the 
particular  business  which  Is  the  subject  of  the  agency,  it  may  rea- 
sonably be  presumed  that  the  parties  to  the  contract  of  agency  orig- 
inally intended  that  such  authority  should  exist,  or  where,  In  the 
course  of  the  employment,  unforeseen  emergencies  arise  which  im- 
pose upon  the  agent  the  necessity  of  employing  a  substitute;  and  that 
when  such  authority  exists,  and  is  duly  exercised,  privity  of  contract 
arises  between  the  principal  and  the  substitute,  and  the  latter  be- 
comes responsible  to  the  former  for  the  due  discharge  of  the  duties 
which  his  employment  casts  upon  him,  as  if  he  had  been  appointed 
agent  by  the  principal  himself."  De  Bussche  v.  Alt,  8  Ch.  Div.  286, 
per  Thesiger,  L.  J. 

Cf.  New  Zealand  &  A.  L.  Co.  v.  Watson,  supra,  which  does  not 
seem  reconcilable  with  the  last  case.  But  see  Bowstead,  Dig.  Ag.  83. 
note  (d).  See,  also,  Kaltenbach  v.  Lewis,  10  App.  Cas.  617,  636. 

»  See  Cockran  v.  Irlam,  2  M.  &  S.  301;  Darling  v.  Stanwood,  14 
Allen  (Mass.)  504;  McCants  v.  Wells,  3  S.  C.  569;  Id.,  4  S.  C.  381; 
Strong  v.  Stewart,  9  Heisk.  (Tenn.)  137;  Whitlock  v.  Hicks,  75  111. 
460. 

*  "The  distinction  between  the  liability  of  one  who  contracts  to  do 
a  thing,  and  that  of  one  who  merely  receives  a  delegation  of  authority 
to  act  for  another,  is  a  fundamental  one.  *  *  *  If  the  agency 
is  an  undertaking  to  do  the  business,  the  original  principal  may 
look  to  the  immediate  contractor  with  himself,  and  is  not  obliged  to 
look  to  inferior,  or  distant  undercontractors  or  subagents,  when  de- 


128  DELEGATION   BY  AGENT SUBAGENTS.  (Ch.  5 

agent  is  created  by  the  employment ;  •  but  such  statements 
must  usually  be  read  in  the  light  of  the  facts  before  the  court, 
and  cannot  be  supported  as  stating  a  rule  unless  "subagent" 
is  used  with  the  restricted  meaning  of  "substitute"  or  of 
"agent  for  the  principal."  If  the  rule  is  so  limited,  it  fur- 
nishes little  practical  guidance ;  for  in  doubtful  cases  the  very 
question  in  controversy  is  whether  the  principal  has  au- 
thorized the  employment  to  be  made  on  his  own  behalf  or 
on  behalf  of  the  agent.  The  difficulty  of  determining  the 
intention  of  the  parties  is  illustrated  by  the  conflicting  de- 
cisions referred  to  in  the  next  paragraph. 

Same — Bank  as  Agent — Deposit  for  Collection- 

When  a  bank  receives  from  a  customer  for  collection  a 
bill  or  note  payable  at  a  distant  place,  the  parties  necessarily 
contemplate  that  the  bank  shall  send  the  paper  to  the  place 
where  it  is  payable,  and  shall  employ  some  subagent  there  to 
collect  and  receive  payment.  So  far  as  the  debtor  is  concern- 
faults  occur  injurious  to  his  interest.  *  *  *  The  nature  of  the 
contract  is  the  test.  If  the  contract  be  only  for  the  immediate  serv- 
ices of  the  agent,  and  for  his  faithful  conduct  as  representing  his 
principal,  the  responsibility  ceases  with  the  limits  of  the  personal 
services  undertaken.  But  where  the  contract  looks  mainly  to  the 
thing  to  be  done,  and  the  undertaking  is  for  the  due  use  of  all  proper 
means  to  performance,  the  responsibility  extends  to  all  necessary  and 
proper  means  to  accomplish  the  object,  by  whomsoever  used."  Ex- 
change Nat.  Bank  v.  Bank,  112  U.  S.  276,  5  Sup.  Ct  141,  28  L.  Ed. 
722,  per  Blatchford,  J.  And  see  cases  cited,  note  7,  infra,  for  state- 
ments of  this  rule. 

6  Wilson  v.  Smith,  3  How.  (U.  S.)  763,  11  L.  Ed.  820;  Campbell  v. 
Reeves,  3  Head  (Tenn.)  226;  and  see  De  Bussche  v.  Alt,  8  Ch.  Div. 
286. 

"A  subagent  is  accountable  ordinarily  only  to  his  superior  agent 
when  employed  without  the  assent  or  direction  of  the  principal.  But 
if  he  be  employed  with  the  express  or  implied  assent  of  the  prin- 
cipal, the  superior  agent  will  not  be  responsible  for  his  acts.  There 
is,  in  such  a  case,  a  privity  between  the  subagent  and  the  principal, 
who  must,  therefore,  seek  a  remedy  directly  against  the  subagent 
for  his  negligence  or  misconduct."  Guelich  v.  Bank,  56  Iowa,  434,  9 
N.  W.  328,  41  Am.  Rep.  110. 


§  30)        AUTHORITY  TO  CREATE  PRIVITY  OP  CONTRACT.  129 

ed,  such  subagent  is  the  agent  of  the  customer  or  principal, 
and  payment  to  the  subagent  is  binding  upon  the  principal. 
The  question  remains  whether  privity  of  contract  is  created 
between  principal  and  subagent,  so  that  the  subagent  is  di- 
rectly responsible  to  the  principal,  and  the  home  bank  or 
agent  is  responsible  only  for  due  care  in  selection,  or  whether 
the  subagent  is  agent  of  and  responsible  to  the  home  bank, 
and  it  is  responsible  to  the  principal  for  the  neglects  and  de- 
faults of  the  subagent.  If,  as  is  sometimes  done,  the  par- 
ties have  expressed  their  intention  in  this  regard,  no  difficulty 
arises.  In  the  absence  of  .any  express  agreement,  the  answer 
to  the  question  depends  upon  the  understanding  to  be  im- 
plied from  the  deposit  of  the  paper  for  collection,  and  in 
their  interpretation  of  this  transaction  the  courts  have  taken 
opposite  views.  By  a  majority  of  the  courts  in  this  country 
it  is  held  that  the  home  bank  merely  undertakes  to  use  due 
care  in  transmitting  the  paper  and  in  selecting  a  subagent.6 
By  other  courts,7  including  the  Supreme  Court  of  the  United 

•  Dorchester  &  Milton  Bank  v.  Bank,  1  Gush.  (Mass.)  177;  East 
Haddara  Bank  v.  Scovil,  12  Conn.  303;  Jackson  v.  Bank.  6  Har.  &  J. 
(Md.)  346;  Citizens'  Bank  v.  Howell,  8  Md.  530,  63  Am.  Dec.  714; 
Hyde  v.  Bank,  17  I,a.  560,  36  Am.  Dec.  621;  Third  Nat  Bank  v. 
Bank,  61  Miss.  112,  48  Am.  Rep.  78;  Stacy  v.  Bank,  12  Wis.  629; 
Merchants'  Nat.  Bank  v.  Goodman,  109  Pa.  422,  2  Atl.  687,  58i  Am. 
Rep.  728;  Bank  of  Louisville  v.  Bank,  8  Baxt.  (Tenn.)  101,  35  Am. 
Rep.  691;  Daly  v.  Rank,  56  Mo.  94,  17  Am.  Rep.  663;  Guelich  v. 
Bank,  56  Iowa,  434.  9  X.  W.  328.  41  Am.  Rep.  110;  First  Nat  Bank 
v.  Sprague,  34  Neb.  318,  51  N.  W.  846,  15  L.  R.  A.  498.  33  Am.  St. 
Rep.  644;  Irwin  v.  Reeves  Pulley  Co..  20  Ind.  App.  101,  48  N.  E.  601, 
50  N.  E.  317;  Wilson  v.  Bank,  187  111.  222,  58  N.  E.  250,  52  L.  R.  A. 
632.  Numerous  other  cases  are  cited  in  the  above. 

T  Allen  v.  Bank,  22  Wend.  (N.  Y.)  215,  34  Am.  Dec.  289:  Ayrault 
v.  Bank,  47  N.  Y.  570.  7  Am.  Rep.  489;  Titus  v.  Bank.  35  N.  J.  Law, 
588;  Reeves  v.  Bank.  8  Ohio  St.  465;  Simpson  v.  Waldby,  63  Mich. 
439.  30  N.  W.  199;  Streissguth  v.  Bank,  43  Minn.  50,  44  N.  W.  797, 
7  L.  R.  A.  363,  19  Am.  St.  Rep.  213;  Power  v.  Bank,  6  Mont  251,  12 
Pac.  597;  State  Nat.  Bank  v.  Manufacturing  Co.,  17  Tex.  Civ.  App. 
214.  42  S.  W.  1016.  Numerous  other  cases  are  cited  in  the  above. 
See.  also,  Mackersy  v.  Remsay,  9  Cl.  &  F.  818;  Van  Wart  v.  Wooley, 
TIFF.P.&  A.— 9 


130  DELEGATION   BY  AGENT SUBAGENTS.  (Ch.  5 

States,8  it  is  held  that  the  bank  undertakes  to  collect  the 
paper,  and  thus  assumes  the  liability  of  an  independent  con- 
tractor with  responsibilty  for  the  acts  and  defaults  of  its 
subagents. 

It  is  generally  conceded  on  both  sides  that  the  decisive 
consideration  is  what  was  the  understanding  of  the  par- 
ties as  to  the  duty  the  home  bank  undertakes  to  perform.9 
The  nature  of  this  understanding,  it  is  submitted,  is  really 
a  question  of  fact.  In  declaring,  on  the  one  hand,  that  in 
such  cases  the  undertaking  of  the  home  bank  is  to  trans- 
mit to  a  suitable  agent  for  collection,  or,  on  the  other 
hand,  that  the  undertaking  of  the  home  bank  is  to  collect, 
the  court  in  effect  lays  down  a  more  or  less  arbitrary  rule 
of  construction,  based,  indeed,  upon  the  understanding  which 
the  court  thinks  likely  to  prevail  in  such  cases,  to  which  it 
resorts  because  the  parties  either  have  no  intention  on  the 
point  or  have  failed  to  express  it.  In  view  of  the  diversity 
of  opinion  among  judges  as  to  the  understanding  between 
parties  to  such  a  transaction,  it  is  probable  that  an  equal 
diversity  of  understanding  exists  among  the  parties  them- 
selves, and  it  would  be  difficult  to  say  that  one  rule  is  better 
calculated  to  give  effect  to  their  intentions  than  the  other. 
If,  as  intimated  in  Exchange  National  Bank  v.  Third  Na- 
tional Bank,10  the  question  is  to  be  determined  "according 
to  those  principles  which  will  best  promote  the  welfare  of 
the  commercial  community,"  it  would  seem  that  the  rule 
adopted  in  that  case,  which  does  not  compel  the  customer 

3  B.  &  C.  439.  Of.  Commercial  Bank  v.  Bank,  8  N.  D.  382,  79  N.  W. 
859. 

s  Exchange  Nat.  Bank  v.  Bank,  112  U.  S.  276,  5  Sup.  Ct  141,  28 
L.  Ed.  722. 

»  "The  foundation  for  all  the  differences  of  opinion  among  the 
learned  judges  *  *  *  appears  clearly  to  rest  in  the  interpretation 
of  the  implied  contract  between  the  depositor  and  the  bank  at  the 
time  the  negotiable  paper  is  deposited  for  collection."  Power  v. 
Bank,  6  Mont.  251,  12  Pac.  597,  per  McLeary,  J. 

10  112  U.  S.  276,  5  Sup.  Ct.  141,  28  L.  Ed.  722,  per  Blatchford,  J. 


§  30)        AUTHORITY  TO  CREATE  PRIVITY  OF  CONTRACT.  131 

to  resort  for  a  remedy  to  a  distant  and  unknown  agent,  is  to 
be  preferred. 

The  same  conflict  of  authority  exists  in  respect  to  the  re- 
sponsibility of  the  bank  for  the  acts  and  defaults  of  a  notary 
employed  by  it  to  protest  paper  which  it  has  received  for  col- 
lection.11 

Same — Attorney  for  Collection. 

A  similar  question  is  presented  when  a  claim  is  placed 
in  the  hands  of  an  attorney  for  collection.  If  the  debtor 
resides  at  a  distant  place,  the  attorney  necessarily  has  author- 
ity to  employ  an  attorney  or  agent  at  that  place,  and  whether 
the  latter  is  agent  of  the  first  attorney  or  of  the  principal  is 
a  question  of  fact,  depending  upon  the  understanding  of  the 
original  parties.12  Many  cases  turn  upon  the  construction 
of  receipts,  stating  in  terms  that  the  claim  is  received  "for 
collection,"  and  such  receipts  have  generally  been  construed 
as  importing  an  undertaking  to  collect,  and  not  merely  to 
transmit  to  a  suitable  agent  to  collect.13  The  same  construc- 
tion has  been  placed  upon  the  undertaking  of  collection  and 
commercial  agencies  in  respect  to  claims  received  for  collec- 

«  That  the  bank  is  responsible  only  for  due  care  in  selecting  the 
notary.  Warren  Bank  v.  Bank,  10  Cush.  (Mass.)  582;  Bellemire  v. 
Bank,  4  Whart  (Pa.)  105,  33  Am.  Dec.  46;  Stacy  v.  Bank,  12  Wis. 
629;  Baldwin  v.  Bank,  1  La.  Ann.  13,  45  Am.  Dec.  72;  Third  Nat. 
Bank  v.  Bank,  61  Miss.  112,  48  Am.  Rep.  78. 

To  the  same  effect,  but  on  the  ground  that  the  notary  is  a  public 
officer  whose  duties  are  prescribed  by  statute.  Britton  v.  Niccolls, 
104  U.  S.  757,  26  L.  Ed.  917  (distinguished  in  Exchange  Nat.  Bank  v. 
Bank,  112  U.  S.  276,  5  Sup.  Ct.  141,  28  L.  Ed.  722);  First  Nat.  Bank 
T.  Butler,  41  Ohio  St.  519,  52  Am.  Rep.  94. 

That  the  bank  is  responsible  for  the  acts  and  defaults  of  the  no- 
tary. Ayrault  v.  Bank,  47  N.  Y.  570,  7  Am.  Rep.  489:  Davey  T. 
Jones.  42  N.  J.  Law,  28,  36  Am.  Rep.  505;  Bank  of  Lindsborg  r. 
Ober,  31  Kan.  599,  3  Pac.  324. 

1 2  National  Bank  of  the  Republic  v.  Bank,  50  C.  C.  A.  443,  112 
Fed.  726. 

is  Bradstreet  v.  Everson,  72  Pa.  124,  13  Am.  Rep.  665  (citing  cases); 
Cummins  v.  Heald,  24  Kan.  600,  36  Am.  Rep.  264. 


132  DELEGATION  BY  AGENT — SUBAGENTS.  (Ch.  5 

tion.14    The  receipt  may,  of  course,  contain  terms  requiring 
a  different  construction.15 

»«  Bradstreet  v.  Everson,  72  Pa.  124,  13  Am.  Rep.  665;  Weyer- 
hauser  v.  Dun,  100  N.  Y.  150,  2  N.  E.  274;  Dale  v.  Hepburn,  11 
Misc.  Rep.  286,  32  N.  Y.  Supp.  269. 

IB  Sanger  v.  Dun,  47  Wis.  615,  3  N.  W.  388,  32  Am.  Rep.  789. 

A  mercantile  agency  which  contracts  with  its  subscribers  to  com- 
municate on  request  information  as  to  the  responsibility  of  mer- 
chants throughout  the  United  States,  stipulating  that  the  information 
Is  to  be  obtained  mainly  by  subagents  of  the  subscribers,  whose 
names  are  not  to  be  disclosed,  and  that  the  correctness  of  informa- 
tion is  not  guarantied,  is  not  liable  for  loss  occasioned  to  a  sub- 
scriber by  the  willful  and  fraudulent  act  of  a  subagent  in  furnishing 
false  information.  Dun  v.  Bank,  7  C.  C.  A.  152,  58  Fed.  174,  23  L. 
R,  A.  687. 


g  32)  TERMINATION   OF  RELATION.  133 

CHAPTER  VI. 

TERMINATION  OF  RELATION. 

81.  Modes  of  Termination. 

32.  Termination  by  Limitation. 

33.  Termination  by  Act  of  Party. 

34.  Termination  by  Operation  of  Law. 

35.  Notice  to  Third  Person— Estoppel. 

36.  Irrevocable  Authority— Authority  Given  as  Security 

37.  Authority  Coupled  with  an  Interest 

38.  Authority  to  Discharge  Liability  Incurred  by  Agent 

MODES   OF   TERMINATION. 

31.  The   relation   of   principal   and   agent   may   terminate— 

(a)  By   express   or   implied    limitation; 

(b)  By  act  of  party; 

(c)  By  operation  of  law. 

The  rules  relating  to  the  termination  of  the  relation  of 
principal  and  agent  may  be  discussed  conveniently  under  the 
above  heads.  The  fundamental  rule  is  that  the  continuance 
of  the  relation,  like  its  formation,  depends  upon  the  will 
of  the  parties,  although  circumstances  may  arise  which  ter- 
minate it  by  operation  of  law. 

TERMINATION    BY    LIMITATION. 

32.  The  relation  of  principal  and  agent  terminates— 

(a)  By   expiration    of    the   term,    whether    a   fixed   period   of 

time,  or  a  period  of  time  determinate  by  the  occur- 
rence of  an  event  expressly  or  impliedly  limited  for 
the  continuance  of  the  relation; 

(b)  If    the    appointment    of    the    agent    is    for    a    particular 

transaction,   upon  his   completion   of   that  transaction. 

The  time  during  which  the  relation  of  principal  and  agent 
shall  continue  may  be  fixed  by  the  express  *  or  implied  2 

§  32.  i  Danby  v.  Coutts,  29  Ch.  D.  500  (fluring  principal's  absent-.- 
from  England);  Gundlach  v.  Fischer.  59  111.  172. 

2  Dickinson  v.  Litwall,  4  Camp.  279  (usage  that  broker's  authority 
expires  with  day  ou  which  he  is  employed). 


134  TERMINATION  OF   RELATION.  (Ch.  6 

terms  of  the  appointment,  so  that  the  authority  of  the  agent 
expires  by  its  own  limitation.  Thus,  the  employment  may 
be  for  a  certain  period  of  time  or  until  the  happening  of  an 
event.  Where  an  agent  is  employed  for  a  particular  trans- 
action, the  relation  necessarily  ceases  when  the  agent  has 
accomplished  the  purposes  of  the  agency.8  When  the  relation 
has  been  so  terminated,  the  agent  is  functus  officio,  and 
can  no  longer  bind  his  principal,4  nor  is  he  any  longer  pre- 
cluded from  acquiring  an  adverse  interest.5 

When  an  agent  is  employed  to  perform  an  act,  it  is  an 
implied  term  of  the  appointment,  unless  a  contrary  inten- 
tion is  manifested,  that  the  authority  shall  cease  in  the  event 
of  the  principal  himself  performing  the  act  or  causing  it  to 
be  otherwise  performed.6  In  such  case  the  authority  is  de- 

»  Blackburn  v.  Scholar,  2  Camp.  341,  343;  Walker  v.  Derby,  5 
Biss.  134,  Fed.  Gas.  No.  17,068. 

An  agent  employed  to  let  or  sell  a  house  after  having  let  had  no 
authority  to  sell,  and  was  not  entitled  to  commission  on  sale.  Gillow 
T.  Aberdare,  9  T.  L.  R.  12. 

The  authority  of  a  solicitor  retained  to  conduct  an  action  ceases 
with  the  judgment.  Macbeath  v.  Ellis,  4  Bing.  468;  Butler  v.  Knight, 
L.  R.  2  Ex.  66. 

An  auctioneer's  authority  ceases  with  sale.  Seton  v.  Slade,  7  Ves. 
265,  276. 

After  completion  of  the  transaction,  a  declaration  of  the  agent  is 
not  binding  on  the  principal.  Atlanta  Sav.  Bank  v.  Spencer,  107 
Ga.  629,  33  S.  E.  878. 

*  After  contract  of  sale  Is  completed,  broker  cannot  alter  terms. 
Blackburn  v.  Scholer,  2  Camp.  341,  343. 

8  Moore  v.  Stone,  40  Iowa,  259;   Short  v.  Millard,  68  111.  292. 

•  Ahern  v.  Baker,  34  Minn.  98,  24  N.  W.  341;    Gilbert  v.  Holmes, 
64  111.  548;   Bissell  v.  Terry,  69  111.  184;    Walker  v.  Denison,  86  111. 
142;   Kelly  v.  Brennan,  55  N.  J.  Eq.  423,  37  Atl.  137. 

The  Illinois  cases  say  that  there  is  a  revocation  by  operation  of 
law,  the  power  of  the  principal  over  the  subject-matter  having  ceased; 
but  if  the  agent  were  entitled  to  notice,  as  in  case  of  an  exclusive 
agency  to  sell,  it  seems  that  he  might  make  a  binding  contract  of 
sale,  entitling  the  purchaser  to  damages,  although  the  principal  had 
conveyed.  "The,  plaintiff  (defendant)  had  a  right  to  employ  several 
agents,  and  the  act  of  one  in  making  a  sale  would  preclude  the  others 


§  32)  TERMINATION  BY  LIMITATION.  135 

termined  by  implied  limitation,  and  notice  of  revocation  is 
not  necessary.  Thus,  where  an  agent  authorized  to  sell  a 
piece  of  land  effected  a  sale  to  A.,  but  in  the  meantime,  without 
notice  to  him,  the  principal  had  sold  the  land  through  another 
agent,  and  executed  a  conveyance  to  another  purchaser,  it 
was  held  that  A.  could  not  maintain  an  action  against  the  prin- 
cipal for  damages  for  breach  of  contract.7  So  the  authority 
of  the  agent  terminates  upon  the  extinction  of  the  subject- 
matter  of  the  agency,  as  if  the  principal  authorizes  the  agent 
to  sell  a  ship,  which  is  afterwards  lost,  since  it  is  an  implied 
term  or  condition  of  the  appointment  that  the  thing  with  ref- 
erence to  which  the  authority  is  to  be  exercised  shall  continue 
to  exist.8 

without  any  notice,  unless  the  nature  of  his  contract  with  them  re- 
quired it"  Ahern  v.  Baker,  supra.  Cf.  Jones  v.  Hodgkins,  61  Me. 
480. 

Where  the  treasurer  of  a  town  was  authorized  to  borrow  to  adjust 
a  tax,  which  was  adjusted  before  he  acted,  his  authority  ceased. 
Benoit  v.  Inhabitants  of  Conway,  10  Allen  (Mass.)  528. 

i  Ahern  v.  Baker,  34  Minn.  98,  24  N.  W.  341. 

•  Story,  Ag.  §  499. 

Clearly,  unless  a  contrary  intention  is  manifested,  a  condition  is 
to  be  implied  that  the  authority  shall  continue  only  so  long  as  the 
ship  continues  to  exist  Quaere  whether  the  principal  could  not  con- 
fer authority  in  such  terms  that  he  would  be  bound  by  a  contract  of 
sale  made  on  his  behalf  notwithstanding  that  when  it  was  entered 
Into  the  ship  had  ceased  to  exist.  A  contract  for  the  sale  of  a  thing 
which,  unknown  to  the  parties,  has  ceased  to  exist,  is  void  for  mutual 
mistake,  but  if  the  seller  knew  the  fact,  and  the  buyer  did  not,  the 
seller  would  be  bound.  The  question  of  the  termination  of  the  au-  - 
thority  by  extinction  of  the  subject-matter  is  distinct  from  the  ques- 
tion of  the  discharge  of  a  contract  of  employment  by  subsequent 
impossibility,  but  in  both  cases  the  result  depends  upon  whether  the 
parties  must  have  contemplated  the  continued  existence  of  the  sub- 
ject-matter as  a  condition— that  is,  whether  such  a  condition  is  to 
be  implied.  See  Turner  v.  Goldsmith  [1891]  1  Q.  B.  544;  Anson, 
Contr.  324;  Clark,  Contr.  678;  Tiffany,  Sales,  23,  160. 


136  TERMINATION  OF  RELATION.  (Ch.  6 


TERMINATION    BY    ACT    OF    PARTY. 

33.  Except  where  an  authority  is  given  to  secure  an  inde- 
pendent benefit,  or  continuance  of  the  authority  is  nec- 
essary to  secure  the  agent  against  liability  incurred, 
as  explained  in  sections  36-38,  the  relation  of  prin- 
cipal and  agent  may  be  terminated  at  any  time  by 
either  party,  subject  to  the  right  which  the  other  may 
have  to  recover  damages  for  breach  of  any  contract 
of  employment— 

(a)  By  revocation  of  the  authority  by  the  principal; 

(b)  By  renunciation  of  the  appointment  by  the  agent. 

Revocation  of  Authority. 

Since  the  power  of  one  person  to  act  for  another  depends 
upon  the  will  of  that  other,  the  power  to  act,  if  it  has  been 
conferred,  ceases  when  the  other  has  manifested  his  will  that 
it  shall  cease.  It  is  a  rule,  therefore,  that  the  principal  may 
revoke  the  authority  of  an  agent  at  any  time  before  it  is  exe- 
cuted, and  that  when  revoked  the  authority  ceases.1  No  sub- 
sequent act  of  the  agent  is  binding  upon  the  principal.2 
Thus,  the  authority  of  an  auctioneer  may  be  revoked  at  any 
time  before  the  goods  are  knocked  down  to  a  purchaser.3 
And,  if  a  broker  is  authorized  to  buy  or  sell,  the  authority 
may  be  revoked  at  any  time  before  completion  of  a  contract 
of  purchase  or  of  sale,  and,  if  under  the  statute  of  frauds  a 
writing  is  required,  even  after  a  verbal  contract  has  been 
completed.4  The  principal  can  revoke  the  authority  although 
he  has  agreed  to  employ  the  agent  for  a  longer  time,  and  by 

§  33.  i  Hunt  v.  Rousmanier,  8  Wheat.  (U.  S.)  174,  5  L.  Ed.  589; 
Rees  v.  Fellow,  38  C.  C.  A.  94,  97  Fed.  167;  Blackstone  v.  Butter- 
more,  53  Pa.  266;  Chambers  v.  Seay,  73  Ala.  373;  Smith  v.  Dare, 
89  Md.  47,  42  Atl.  909. 

2  Taylor  v.  Lendley,  9  East,  49;   Warwick  v.  Slade,  11  Camp.  127. 

»  Manser  v.  Back,  6  Hare,  443. 

A  recent  English  case  holds,  however,  that  after  land  has  been 
bid  off  the  purchaser  cannot  revoke  the  auctioneer's  authority  to  sign 
the  memorandum.  Van  Praagh  v.  Everidge  [1902]  2  Ch.  266. 

*  Farmer  v.  Robinson,  2  Camp.  339,  note. 


§  33)  TERMINATION   BY  ACT  OF  PARTY.  137 

revoking  is  guilty  of  a  breach  of  the  contract  of  employment ; 
for  the  power  is  distinct  from  the  right  to  revoke.6  The  gen- 
eral rule  is  subject  to  important  exceptions  in  certain  cases 
where  the  interest  of  the  agent  or  of  some  other  person  is  in- 
volved in  the  continuance  of  the  authority,  a  subject  which 
will  be  considered  later.6 

Same — How  Effected — Notice. 

The  authority  of  an  agent  can  be  terminated  by  revocation 
by  any  manifestation  of  the  principal's  will  that  the  authority 
shall  cease;  in  other  words,  by  notice  of  revocation.7  The 
notice  may  be  express  8  or  implied,9  and  may  be  communi- 
cated in  any  manner.  Authority  conferred  by  deed  may  be 
revoked  by  parol.10  A  revocation  may  be  implied  from  any 
conduct  of  the  principal  brought  home  to  the  agent  which 
manifests  an  intention  to  revoke.  Thus,  the  appointment  of 
another  agent  to  do  the  same  act  may  be  effective  as  a  revo- 
cation of  the  power  of  the  former  agent,11  although  no  such 
implication  would  arise  unless  the  exercise  of  the  authority 
by  both  were  incompatible.12  So,  if  the  principal  disposes  of 
the  subject-matter  of  the  agency,  as,  for  example,  if  he  sells 
property  which  he  has  authorized  another  to  sell,  a  revoca- 
tion is  to  be  implied.18  So,  a  revocation  of  authority  is  to  be 

e  Post,  p.  139.  «  Post,  p.  152. 

T  Jones  v.  Hodgkins,  61  Me.  480;  Robertson  v.  Cloud.  47  Miss. 
208:  Weile  v.  United  States,  7  Ct.  CI.  535. 

s  Brookshire  v.  Brookshire,  30  N.  C.  74,  47  Am.  Dec.  341;  Rees 
v.  Pellow,  38  C.  C.  A.  94,  97  Fed.  167  (letter  delivered  at  agent's 
office  in  his  absence). 

•  Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198;  Kelly  v.  Brennan. 
55  N.  J.  Eq.  423.  37  Atl.  137  (demand  for  return  of  written  power 
and  surrender  thereof);  Chenault  v.  Quisenberry  (Ky.)  57  S.  W.  234 
(power  to  convey  revoked  by  conveyance  of  premises  to  agent  as 
trustee). 

10  Brooksbire  v.  Brookshire,  30  N.  C.  74,  47  Am.  Dec.  341. 

11  Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198. 

12  Davol  v.  Quimby,  11  Allen  (Mass.)  208;   Enright  v!  Beaumond, 
68  Vt  249,  35  Atl.  57. 

n  In  Jones  v.  Hodgkins,  61  Me.  480,  where  a  commission  merchant 


138  TERMINATION   OF  RELATION.  (Ch.  6 

implied  from  the  dissolution  of  a  partnership  14  or  from  the 
severance  of  a  joint  interest.15 

Same — Notice  to  Third  Persons — Estoppel. 

From  its  very  nature  the  revocation  of  an  agency  must  be 
made  known  to  the  agent.  From  that  time  the  authority 
ceases,  and  the  relation  of  principal  and  agent  is  terminated. 

It  does  not  follow,  of  course,  that  the  principal  may  not 
still  be  bound  by  the  acts  of  the  agent ;  for  if  the  principal 
has  held  out  the  agent  as  such  he  will  be  estopped  to  deny 
the  agency  as  against  third  persons  who  may  deal  with  the 
agent  without  notice  that  his  authority  has  been  revoked.16 
Therefore,  if  the  principal  has  recognized  the  authority  of  an 
agent  in  dealings  with  a  third  person,  so  as  to  create  a  repre- 
sentation of  authority,  the  latter  may  rely  on  the  continuance 
of  the  implied  authority  until  he  has  received  notice  of  its 
revocation ;  and,  if  a  person  has  been  held  out  to  the  public 
as  an  agent,  third  persons  may  deal  with  him  as  such  until 
the  principal  has  given  public  notice  that  the  general  au- 
thority is  withdrawn.17  On  the  other  hand,  if  an  agent  has 
been  authorized  merely  to  do  a  particular  act,  unless  the 
principal  has  made  representation  creating  an  estoppel  as 

gold  and  delivered  goods  intrusted  to  him  for  sale  before  notice  of 
a  sale  to  another  buyer  by  the  principal,  the  agent  was  not  liable 
to  the  principal  In  trover.  "Undoubtedly,"  said  Appleton,  C.  J.,  "a 
sale  of  property  In  the  hands  of  a  commission  merchant  employed 
to  sell  such  property  is  a  revocation— is  an  act  revoking  the  authority 
given.  But  so  long  as  it  remains  unknown  to  the  commission  mer- 
chant he  is  not  bound  by  it."  See  ante,  p.  134. 

14  Schlater  v.  Winpenny,  75  Pa.  321. 

15  Rowe  v.  Rand,  111  Ind.  206,  12  N.  E.  377. 
is  Ante,  p.  34;   post,  pp.  151,  183. 

IT  Anon.  v.  Harrison,  12  Mod.  952;  Trueman  v.  Loder,  11  Ad.  & 
E.  589;  Pole  v.  Leask,  33  L.  J.  Ch.  155;  Hatch  v.  Coddington,  95 
U.  S.  48,  24  L.  Ed.  339;  Southern  Life  Ins.  Co.  v.  McCain,  96  U.  S. 
84,  24  L.  Ed.  653;  Tier  v.  Lampson,  35  Vt.  179,  82  Am.  Dec.  634; 
Fellows  v.  Steamboat  Co.,  38  Conn.  197;  McNeilly  v.  Insurance  Co., 
66  N.  Y.  23;  Lamothe  v.  Dock  Co.,  17  Mo.  204;  Wheeler  v.  Mc- 
Guire,  86  Ala.  398,  5  South.  190,  2  L.  R.  A.  808. 


§  33)  TERMINATION   BY   ACT  OF  PARTY.  139 

against  a  particular  person,  notice  to  the  agent  is  sufficient.18 
Since  the  liability  of  the  principal  to  third  persons  after  revo- 
cation of  the  authority  rests  upon  estoppel,  express  notice  of 
revocation  is  not  requisite  to  relieve  the  principal  from  lia- 
bility for  subsequent  acts.  An  estoppel  can  exist  only  in  fa- 
vor of  one  who  has  in  good  faith  dealt  with  the  agent  in  re- 
liance upon  his  apparent  authority,  and  hence  does  not  arise 
if  the  third  person  had  knowledge  of  facts  which  gave  him 
reasonable  cause  to  believe  that  the  authority  had  been  with- 
drawn.10 Where,  however,  a  statute  provides  for  the  record 
of  powers  of  attorney,  such  as  powers  to  convey  land,  and 
makes  the  record  constructive  notice,  and  provides  for  the 
record  of  instruments  of  revocation,  third  persons  who  are 
without  notice  of  an  unrecorded  revocation  may  rely  upon 
the  presumption  of  continuance  of  the  authority.20 

Same — Revocation  befoie  Expiration  of  Term  of  Employment. 

As  has  been  pointed  out,  the  principal  can  revoke  the  au- 
thority at  any  time,  although  he  has  agreed  to  employ  the 
agent  for  a  longer  time,  and  by  revoking  is  guilty  of  a  breach 
of  the  contract  of  employment.  It  is  in  this  sense  that  it  is 
sometimes  said  that  the  power  to  revoke  is  distinct  from  the 
right  to  revoke.  In  other  words,  while  the  power  to  revoke 
always  exists,  except  in  certain  exceptional  cases,21  the  prin- 
cipal may  bind  himself  by  contract  not  to  exercise  the  power, 
and  thus  incur  liability  toward  the  agent  in  case  of  revocation, 
as  for  the  breach  of  any  other  contract.22 

A  right  on  the  part  of  the  agent  to  be  employed,  or  a 
right  on  the  part  of  the  principal  to  receive  the  services  of 

is  Watts  v.  Kavanagh,  35  Vt  34. 

i»  Claflin  v.  Lenheim,  66  N.  Y.  301;  Williams  v.  Blrbeck,  Hoff. 
Ch.  (N.  Y.)  300. 

20  Gratz  v.  Improvement  Co.,  27  C.  C.  A.  305,  82  Fed.  381,  40  L. 
R.  A.  393. 

21  Post,  p.  138. 

22  Coffin  v.  Landis,  46  Pa.  426;    Lewis  v.  Insurance  Co.,  61  Mo. 
534;  Standard  Oil  Co.  v.  Gilbert,  84  Ga.  714,  11  S.  E.  491,  8  L.  E.  A. 
410;    Green  v.  Cole,  127  Mo.  587,  30  S.  W.  135. 


140  TERMINATION  OF  RELATION.  (Ch.  6 

the  agent,  can  arise  only  by  virtue  of  a  contract  of  employ- 
ment conferring  such  rights.  A  promise  on  the  part  of  the 
principal  to  employ  the  agent  for  a  certain  time  may  be  ex- 
press or  implied,  but  no  such  promise  is  to  be  implied  from 
the  mere  appointment.23  Ordinarily  the  obligation  to  serve 
and  the  obligation  to  employ  are  correlative,  and  where  the 
agect  has  bound  himself  to  serve  for  a  fixed  term  a  corre- 
sponding obligation  to  employ  will  readily  be  implied ; 24  but 
the  parties  may  contract  upon  their  own  terms,  and  unless 
the  terms  are  explicit  the  question  turns  upon  the  construc- 
tion and  interpretation  of  the  particular  contract.25 

A  definite  term  of  employment  is  often  to  be  implied  from 
the  fact  that  the  compensation  of  the  agent  is  measured  by 
the  term  of  service.  Thus,  if  the  agent  is  to  be  paid  an 
annual  salary,  the  contract  will  readily  be  interpreted  as  con- 

28  Kirk  v.  Hartman,  63  Pa.  97;  Jacobs  v.  Warfield,  23  La.  Ann. 
395. 

24  Lewis  v.  Insurance  Co.,  61  Mo.  534;    Horn  v.  Association,  22 
Minn.  233. 

25  A.  and  B.  agreed,  "in  consideration  of  the  services  and  pay- 
ments to  be  mutually  rendered,"  that  for  seven  years,  or  so  long  as 

A.  should  continue  to  carry  on  business  at  L.,  A.   should  be  sole 
agent  at  L.  for  sale  of  B.'s  coals.    B.  was  to  have  control  over  prices 
and  credits,  and  if  A.  could  not  sell  a  certain  amount  per  year,  or 

B.  could  not  supply  a  certain  amount,  either  might,  on  notice,  put 
an   end  to  the  agreement.     At  the  end  of  four  years  B.   sold  the 
colliery.     Held,  that  A.  could  not  maintain  an  action  for  breach  of 
the  agreement,  since  it  did  not  bind  B.  to  keep  the  colliery  or  to  do 
more  than  employ  A.  as  agent  for  sale  of  such  coals  as  he  sent  to 
L.     Rhodes  v.  Forwood,  1  App.  Cas.  256. 

Defendant,  a  shirt  manufacturer,  agreed  to  employ  plaintiff,  and 
plaintiff  agreed  to  serve  defendant  as  agent,  canvasser,  and  traveler, 
the  agency  to  be  determinable  by  either  at  the  end  of  five  years,  by 
notice,  and  plaintiff  to  do  his  utmost  to  obtain  orders  and  to  sell 
the  goods  "manufactured  or  sold"  by  defendant  as  should  be  for- 
warded or  submitted  by  sample  to  plaintiff.  After  two  years  de- 
fendant's factory  was  burned  down,  and  he  did  not  resume  business 
or  further  employ  plaintiff.  Held,  that  plaintiff  could  recover  for 
breach  of  contract,  since  there  was  (distinguishing  the  case  from 
Rhodes  v.  Forward,  supra)  an  express  promise  to  employ,  and  a 


§  33)  TERMINATION    BY   ACT   OF   PARTY.  141 

templating  an  employment  for  a  year; 28  and  where  an  agent 
employed  for  a  definite  term,  as  a  year  or  a  month,  con- 
tinues to  be  employed  after  the  expiration  of  the  original 
term,  a  renewal  of  the  employment  for  another  equivalent 
term  will,  in  the  absence  of  anything  to  indicate  a  different 
intention,  be  presumed.27  But  no  inflexible  rule  can  be  laid 
down,  since  the  intention  of  the  parties  must  be  gathered 
from  the  construction  of  the  contract  as  a  whole.28 

Frequently  the  contract  of  employment,  although  for  a 
definite  term,  provides  for  its  prior  termination  upon  certain 
contingencies,  and  in  such  cases  the  principal,  if  he  dischar- 
ges the  agent,  merely  exercises  a  right  and  incurs  no  liabil- 
ity for  breach  of  contract.29  The  principal  may  also  dis- 
charge the  agent  without  liability  for  breach  of  any  implied 
condition  in  the  contract  of  employment.  As  we  shall  see,80 
every  agent,  by  entering  into  the  relation,  assumes  certain 

condition  that  the  factory  should  continue  to  exist  could  not  be  im- 
plied. "The  contract,"  said  Lindley,  L.  J.,  "will  be  treated  as  sub- 
ject to  an  implied  condition  that  it  is  to  be  in  force  only  so  long 
as  a  certain  state  of  things  continues,  in  those  cases  only  -where  the 
parties  must  have  contemplated  the  continuing  of  that  state  of  things 
as  the  foundation  of  what  was  to  be  done.  Here  the  parties  cannot 
be  taken  to  have  contemplated  the  continuance  of  the  defendant's 
manufactory  as  the  foundation  of  what  was  to  be  done;  for  *  *  * 
the  plaintiff's  employment  was  not  confined  to  articles  manufactured 
by  the  defendant."  Turner  v.  Goldsmith  [1891]  1  Q.  B.  544. 

26  Emmens  v.  Elderton,  13  C.  B.  495;    Norton  v.  Cowell.  65  Md. 
359,  4  Atl.  408,  57  Am.  Rep.  331;    Horn  v.  Association,  22  Minn.  233. 
But  see  Orr  v.  Ward,  73  111.  318. 

27  Tatterson  v.  Manufacturing  Co..  106  Mass.  56;    Sines  v.  Super- 
intendents, 58  Mich.  503,  25  N.  W.  485;   Alba  v.  Moriarty,  36  La.  Ann. 
680. 

28  Tattersou  v.  Manufacturing  Co..  10(3  Mass.  56;  Franklin  Min.  Co. 
v.  Harris,  24  Mich.  115;    Palmer  v.  Mill  Co.,  32  Mich.  274;    McCul- 
lough  Iron  Co.  v.  Carpenter,  67  Md.  554,  11  Atl.  176;   Haney  v.  Cald- 
well,  35  Ark.  156. 

2«  Oregon  &  W.  Mortg.  Sav.  Bank  v.  Mortgage  Co.  (C.  C.)  35  Fed. 
22;   Adriance  v.  Rutherford,  57  Mich.  170,  23  N.  W.  718. 
«o  Post,  p.  393. 


142  TERMINATION   OF  RELATION.  (Ch.  6 

obligations  toward  his  principal,  such  as  the  obligations  to 
obey  instructions,  and  to  use  reasonable  skill,  diligence,  and 
care,  and  to  act  in  good  faith,  and  in  every  contract  of  agency 
it  is  an  implied  condition  that  the  agent  will  perform  these 
obligations.  Consequently  for  a  breach  of  any  of  these  im- 
plied conditions  the  principal  may  revoke  the  authority  of  the 
agent  without  incurring  liability  on  that  account.81 

denunciation  of  Appointment. 

Since  the  relation  depends  upon  the  will  of  both  parties,  it 
may  be  determined  at  any  time  by  the  renunciation  of  the 
agent,32  subject,  as  in  the  case  of  revocation,  to  the  right  of 
the  other  party  to  recover  damages  for  breach  of  the  contract 
of  employment,  if  such  contract  exists.33  The  intention  to 
renounce  must,  of  course,  be  communicated  to  the  principal, 
but  it  may  be  implied  from  the  conduct  of  the  agent,  as  when 
he  abandons  the  business  of  the  agency,  and  the  principal 
may  then  treat  the  agency  as  terminated.34  If  the  principal 
has  held  out  the  agent  as  such,  he  must,  at  his  peril,  notify 
third  persons  of  the  termination  of  the  authority.86  The 
principal  is  entitled  to  reasonable  notice  of  renunciation ; 
and  although  the  agent  has  not'  bound  himself  by  contract  to 

«i  Phoenix  Mut.  Life  Ins.  Co.  v.  Holloway,  51  Conn.  311,  50  Am. 
Rep.  21;  Dioringer  v.  Meyer,  42  Wis.  311,  24  Am.  Rep.  415;  Newman 
v.  Reagan,  65  Ga.  512;  Ford  v.  Danks,  16  La.  Ann.  119;  Case  v.  Jen- 
nings, 17  Tex.  661.  See  Edwards  v.  Levy,  2  F.  &  F.  94;  Caldo  v. 
Bruncher,  4  C.  &  P.  518.  As  to  the  implied  obligations  of  a  servant, 
Wood,  Mast.  &  S.  (2d  Ed.)  §  83.  See,  also,  Id.  §§  110-120. 

as  United  States  v.  Jarvis,  2  Ware,  278,  Fed.  Cas.  No.  15,468;  Bar- 
rows v.  Cushway,  37  Mich.  481.  See,  also,  First  Nat  Bank  v.  Bissell 
(C.  C.)  2  McCrary,  73,  4  Fed.  694.  On  breach  of  a  contract  of  agency 
by  the  principal,  the  agent  is  justified  in  repudiating  the  agency. 
Duffield  v.  Michaels  (C.  C.)  97  Fed.  825. 

ss  United  States  v.  Jarvis,  2  Ware,  278,  Fed.  Cas.  No.  15,468;  White 
v.  Smith,  6  Lans.  (N.  Y.)  5;  Cannon  Coal  Co.  v.  Taggart,  1  Colo.  App. 
60,  27  Pac.  238. 

3*  Stoddart  v.  Key,  62  How.  Prac.  (N.  Y.)  137;  Case  v.  Jennings, 
17  Tex.  661.  Cf.  Leopold  v.  Salkey,  89  111.  412,  31  Am.  Rep.  93. 

SB  Capen  v.  Insurance  Co.,  25  N.  J.  Law,  67,  44  Am.  Dec.  412. 


§  34)  TERMINATION  BY   OPERATION  OF  LAW.  143 

serve  for  a  definite  time  or  to  complete  the  business  delegated 
to  him,  it  seems  that  he  will  be  liable  to  the  principal  for  any 
loss  that  may  result  from  his  failure  to  give  reasonable  no- 
tice.86 If  the  renunciation  is  not  in  breach  of  his  con- 
tract, the  agent  will  be  entitled  to  compensation  and  reim- 
bursement as  in  other  cases.  His  right  to  compensation 
where  his  renunciation  is  in  breach  of  contract  will  be  con- 
sidered later.37 

Termination  by  Agreement. 

Since  the  relation  of  principal  and  agent  may  be  terminated 
by  either  party,  it  may,  of  course,  be  terminated  by  agreement. 

TERMINATION    BT    OPERATION    OF    LAW. 

34.  Except  where  an  authority  is  given  to  secure  an  inde- 
pendent benefit  or  the  continuance  of  the  authority 
is  necessary  to  protect  the  agent  against  liabilities 
incurred,  as  explained  in  sections  36-38,  the  relation 
of  principal  and  agent  is  terminated— 

(a)  By  the  death  of  either  party; 

(b)  By  the  insanity  of  either  party; 

(c)  At  common  law,  if  a  feme  sole  is  principal,  by  her  mar- 

riage:  and  •where  the  subject  of  the  authority  is  real 
estate,  in  -which  a  husband  or  wife  acquires  an  interest 
upon  marriage,  the  authority  is  revoked,  at  least  to 
that  extent,  by  marriage  of  the  principal; 

(d)  By  the  bankruptcy  of  the  principal,  so  far  as  relates  to 

rights  of  which  he  is  thereby  divested,  and  by  the 
bankruptcy  of  the  agent,  except  so  far  as  relates  to 
the  performance  of  formal  acts; 

(e)  When    the   principal    and    agent   are    in   different    conn- 

tries,  as  a  rule,  by  the  outbreak  of  war  between  those 
countries. 

Circumstances  may  occur,  after  the  creation  of  an  agency, 
which  terminate  it  irrespective  of  its  original  limitation  or 
of  the  act  of  the  parties  directed  to  that  end.  An  agency  is 

8«  United   States  v.  Jarvis,  2  Ware,  278.   Fed.   Gas.   No.   15,468. 
Quaere  in  the  case  of  a  gratuitous  agency.     See  Story,  Ag.  §  478. 
»7  Post,  p.  445. 


144  TERMINATION   OF  RELATION.  (Ch.  (> 

terminated  by  the  death,  insanity,  marriage,  or  bankruptcy 
of  one  or  the  other  of  the  parties,  by  war,  or  by  a  change 
of  law  rendering  the  continuance  of  the  agency  unlawful.  In 
these  cases  the  agency  may  be  said  to  be  dissolved,  for  lack 
of  better  term,  "by  operation  of  law."  *  Some  of  these  forms 
of  termination — for  example,  termination  by  death  or  bank- 
ruptcy of  the  agent — might  perhaps  be  classed  logically  under 
the  head  of  termination  by  original  limitation,  but  the  above 
classification  has  been  adopted  for  the  sake  of  convenience. 

Death. 

The  authority  of  the  agent,  unless  it  be  coupled  with  an  in- 
terest,2 is  terminated  by  the  death  of  the  principal.8  This  re- 
sults logically  from  the  representative  character  of  the  agent, 
the  authority  to  act  necessarily  presupposing  a  principal  to 
be  bound.  The  authority  is  also  terminated  by  the  death  of 
one  of  two  or  more  joint  principals,4  or  by  the  death  of  a 
partner  in  case  of  an  agent  appointed  by  a  firm.5  Moreover, 
the  contract  of  employment,  likewise,  if  one  exists,  is  ter- 
minated, and  the  agent  is  not  entitled  to  recover  damages 

§  34.  i  Under  dissolution  by  operation  of  law,  Story  includes  all 
forms  of  dissolution  except  by  revocation  or  renunciation.  Story,  Ag. 
§  462. 

2  Post,  p.  152. 

» Watson  v.  King,  4  Camp.  272;  Wallace  v.  Cook,  5  Esp.  46; 
Blader  v.  Free,  9  B.  &  C.  167;  Hunt  v.  Rousmanier,  8  Wheat.  (U.  S.) 
174,  5  L.  Ed.  589:  Pacific  Bank  v.  Hannah,  32  C.  C.  A.  522,  90  Fed. 
72;  Lincoln  v.  Emerson,  108  Mass.  87;  Brown  v.  Cushman,  173  Mass. 
368,  53  N.  E.  860;  Harper  v.  Little,  2  Greenl.  (Me.)  14,  11  Am.  Dec. 
25;  Davis  v.  Bank,  46  Vt.  728;  Clayton  v.  Merrett,  52  Miss.  353; 
Darr  v.  Darr,  59  Iowa,  81,  12  N.  W.  765;  Connor  v.  Parsons  (Tex. 
Civ.  App.)  30  S.  W.  83;  Duckworth  v.  Orr,  126  N.  C.  674,  36  S.  E. 
150;  Tuttle  v.  Green  (Ariz.)  48  Pac.  1009;  In  re  Kern's  Estate,  176 
Pa.  373,  35  Atl.  231. 

4  Rowe  v.  Rand,  111  Ind.  206,  12  N.  E.  377.  Cf.  Tasher  v.  Shep- 
hard,  6  H.  &  N.  575;  Long  vi  Thayer,  150  U.  S.  520,  14  Sup.  Ct  189, 
37  L.  Ed.  1167. 

»  Griggs  v.  Swift,  82  Ga.  392,  9  S.  E.  1062,  5  L.  R.  A.  405,  14  Am. 
St.  Rep.  176.  But  see  Bank  of  New  York  v.  Vanderhorst,  32  N.  Y. 
653. 


§  34)  TERMINATION   BY   OPERATION   OP  LAW.  145 

for  the  failure  to  employ  him  for  the  balance  of  the  term." 
The  authority  terminates  from  the  moment  of  death,  and  all 
subsequent  acts  of  the  agent  are  nullities,  although  the  death 
was  unknown  to  him  and  to  the  third  person  dealing  with 
him.7  "In  the  case  of  a  revocation,  the  power  continues  good 
against  the  constituent,  till  notice  is  given  to  the  attorney, 
but  the  instant  the  constituent  dies  the  estate  belongs  to  his 
heirs,  or  devisees,  or  creditors;  and  their  rights  cannot  be 
divested  or  impaired  by  any  act  performed  by  the  attorney 
after  the  death  has  happened;  the  attorney  then  being  a 
stranger  to  them,  and  having  no  control  over  their  proper- 
ty." *  Owing  to  the  harshness  of  this  rule,  it  has  not  become 
established  without  some  dissent.9  Story  was  of  the  opinion 
that  it  should  not  apply  where  the  act  to  be  done  may  law- 
fully be  done  in  the  sole  name  of  the  agent,  as  in  the  case 
of  a  factor,  supercargo,  or  shipmaster,  and  that  the  author- 
ity should  in  those  cases  be  binding  upon  all  the  parties  in 
interest.10  But  this  exception  has  not  generally  prevailed, 
and  the  rule  is  almost  universally  recognized  that,  except 
where  the  authority  is  coupled  with  an  interest,  the  death  of 
the  principal  works  an  instantaneous  termination  of  the 

«  Baxter  v.  Bui-field.  2  Srr.  1266;  McNaughton  v.  Moore,  2  N.  C. 
189;  Yenington  v.  Givene,  7  R.  I.  589,  84  Am.  Dec.  578.  See  Tasher 
v.  Shepherd,  6  H.  &  N.  575. 

i  Long  v.  Thayer,  150  U.  S.  520,  14  Sup.  Ct.  189,  37  L.  Ed.  1167; 
Weber  v.  Bridgmaii,  113  N.  Y.  600,  21  N.  E.  985;  Farmers'  Loan  & 
Trust  Co.  v.  Wilson,  339  N.  Y.  284,  34  N.  E.  784,  36  Am.  St.  Rep.  696; 
Soltau  v.  Vulcanite  Co.,  12  Misc.  Rep.  131,  33  N.  Y.  Supp.  77;  Jenkins 
v.  Atkins,  1  Humph.  (Tenn.)  294,  34  Am.  Dec.  648;  Lewis  v.  Kerr, 
17  Iowa,  73.  And  see  cases  cited  note  3,  supra. 

s  Harper  v.  Little,  2  Greenl.  (Me.)  14,  11  Am.  Dec.  25,  per  Mellen, 
C.  J. 

•  Cassiday  v.  McKenzie,  4  Watts  &  S.  (Pa.)  282,  39  Am.  Dec.  76; 
Ish  v.  Crane,  8  Ohio  St.  520;  Id.,  13  Ohio  St.  574;  Dick  v.  Page,  17 
Mo.  234,  57  Am.  Dec.  267;  Deweese  v.  Muff,  57  Neb.  17,  77  N.  W. 
361,  42  L.  R.  A,  789,  73  Am.  St  Rep.  488;  Story,  Ag.  §§  495-498i; 
Wharton,  Ag.  §§  102-104. 

10  Story,  Ag.  §  496. 
TIFF.P.&  A.— 10 


146  TERMINATION   OF  RELATION.  (Ch.  6 

agency,  and  consequently  that  any  subsequent  act   of  the 
agent  is  inoperative  to  bind  the  principal's  estate. 

The  agency  is  also  terminated  by  the  death  of  the  agent.11 
The  authority  is  personal  to  him,  and  does  not  vest  in  his 
executors  or  administrators,  unless,  indeed,  the  authority  is 
conferred  upon  them  by  the  terms  of  the  appointment.  If, 
however,  the  authority  is  coupled  with  an  interest,  it  sur- 
vives.12 The  death  of  one  of  two  or  more  joint  agents,18  or 
of  a  member  of  an  agent  firm,14  unless  by  the  terms  of  the 
appointment  authority  is  conferred  upon  the  survivors,  also 
terminates  the  agency.  The  death  of  an  agent  terminates  the 
authority  of  a  subagent,16  unless  the  agent  was  authorized  to 
employ  the  subagent  on  the  principal's  behalf,  and  thus  create 
privity  of  contract.1" 

Insanity. 

Where  such  a  change  occurs  that  the  principal  can  no 
longer  act  for  himself,  the  agent  whom  he  has  appointed  can 
no  longer  act  for  him.  Hence,  if  the  principal  becomes  in- 
sane, the  authority  of  the  agent  is  thereby  terminated.17  This 

11  Johnson  v.  Johnson's  Adm'rs,  Wright  (Ohio)  594;   Gage  v.  Alli- 
son, 1  Brev.  (S.  C.)  495,  2  Am.  Dec.  682;    In  re  Merrick's  Estate,  8 
Watts  &  S.  (Pa.)  402.     See,  also,  Adriance  v.  Rutherford,  57  Mich. 
170,  23  N.  W.  718. 

12  Harnickell  v.  Orndorff,  35  Md.  341;   Collins  v.  Hopkins,  7  Iowa, 
463;   Merrin  v.  Lewis,  90  111.  505;   Jones,  Mtg.  §  1786. 

is  Hartford  Fire  Ins.  Co.  v.  Wilcox,  57  111.  180;  Salisbury  v.  Bris- 
bane, 61  N.  Y.  617. 

i  *  Martine  v.  Insurance  Co.,  53  N.  Y.  339,  13  Am.  Rep.  529. 

IB  Peries  v.  Aycinena,  3  Watts  &  S.  (Pa.)  64;  Lehigh  Coal  & 
Navigation  Co.  v.  Mohr,  83  Pa.  228,  24  Am.  Rep.  161;  Watt  v.  Watt 
2  Barb.  Ch.  (N.  Y.)  371. 

is  Smith  v.  White,  5  Dana  (Ky.)  376;   Story,  Ag.  §  490. 

IT  Drew  v.  Nunn,  4  Q.  B.  D.  661;  Davis  v.  Lane,  10  N.  H.  156; 
Matthiesson  &  Weichers  Refining  Co.  v.  McMahon,  38  N.  J.  Law,  536; 
Hill's  Ex'rs  v.  Day,  34  N.  J.  Eq.  150;  Bunce  v.  Gallagher,  5  Blatchf. 
481,  Fed.  Cas.  No.  2,133;  Renfro  v.  City  of  Waco  (Tex.  Civ.  App.)  33 
S.  W.  766. 

Contra:    Wallis  v.  Manhattan  Co.,  2  Hall  (N.  Y.)  495,  so  far  as  it 


§  34)  TERMINATION  BY   OPERATION   OF  LAW.  147 

rule  is  subject  to  the  usual  exception,  if  the  authority  is 
coupled  with  an  interest.18  And,  as  has  been  shown,  if  the 
principal  has,  by  word  or  conduct,  represented  that  an  agent 
is  authorized  to  act  in  his  behalf,  he  is  bound,  notwithstand- 
ing his  subsequent  insanity,  by  an  executed  contract  which  a 
third  person,  in  ignorance  of  the  insanity  and  in  reliance  upon 
the  representation,  has  entered  into  with  the  agent.19  In 
most  jurisdictions  the  contracts  of  a  person  who  has  been 
judicially  declared  insane  are  void,  and  in  such  case  the  ad- 
judication would  doubtless  be  constructive  notice  of  the  ter- 
mination of  authority.20 

It  is  laid  down  by  all  text-writers  that  the  insanity  of  the 
agent  terminates  his  authority,21  but  the  question  does  not 
appear  to  have  been  presented  to  the  courts.  It  seems  that 

holds  that  lunacy  must  be  established  by  inquisition.  "I  think  that 
the  satisfactory  principle  to  be  adopted  is  that,  where  such  a  change 
occurs  as  to  the  principal  that  he  can  no  longer  act  for  himself,  the 
agent  whom  he  has  appointed  can  no  longer  act  for  him.  In  the 
present  case  a  great  change  has  occurred  in  the  condition  of  the 
principal:  he  was  so  far  afflicted  with  insanity  as  to  be  disabled  from 
acting  for  himself;  therefore  his  wife,  who  was  his  agent,  could  no 
longer  act  for  him.  Upon  the  ground  which  I  have  pointed  out,  I 
think  that  her  authority  was  terminated."  Drew  v.  Nunn,  supra, 
per  Brett,  L.  J. 

is  Davis  v.  Lane,  10  N.  H.  156;  Matthiesson  &  Weichers  Refining 
Co.  v.  McMahon,  38  N.  J.  Eq.  536;  Hill's  Ex'rs  v.  Day,  34  N.  J.  Eq. 
150. 

i»  Ante,  p.  100.  *°  Ante,  p.  99.     See  Huff  cut,  Ag.  §  71. 

In  Motley  v.  Head,  43  Vt.  633,  it  was  held  that  the  mere  appoint- 
ment of  a  guardian  would  not  warrant  a  holding  that  the  agency  was 
terminated,  unless  It  appeared  that  the  insanity  was  such  as  to  dis- 
qualify from  making  a  valid  contract 

21  "The  case  of  the  insanity  of  the  agent  would  seem  to  constitute 
a  natural,  nay,  a  necessary,  revocation  of  his  authority;  for  the 
principal  cannot  be  presumed  to  intend  that  acts  done  for  him  and  to 
bind  him,  shall  be  done  by  one  who  is  incompetent  to  understand,  or 
to  transact,  the  business  which  he  is  employed  to  execute.  The  ex- 
ercise of  sound  judgment  and  discretion  would  seem  to  be  required 
In  all  such  cases,  as  preliminaries  to  the  due  execution  of  the  author- 
ity." Story,  Ag.  |  487. 


148  TERMINATION  OP  RELATION.  (Ch.  6 

third  persons  dealing  with  the  agent  in  good  faith,  and  in  re- 
liance upon  his  apparent  authority,  if  they  could  not  be  re- 
stored to  their  former  position,  would  be  entitled  to  protec- 
tion." 

Marriage 

At  common  law  the  marriage  of  a  feme  sole  operates  to 
revoke  the  authority  of  an  agent  previously  appointed  by 
her.28  Under  the  modern  statutes  conferring  upon  married 
women  the  power  of  disposing  of  their  property,  a  married 
woman  may  appoint  an  agent,24  and  hence  the  marriage  of 
a  feme  sole  does  not  as  a  rule  revoke  the  authority  of  her 
agent.25  But  where  the  joinder  of  the  husband  is  necessary 
to  a  conveyance  by  a  married  woman,  the  power  of  a  feme 
sole  is  necessarily  revoked  by  marriage.26  Where  by  mar- 
riage a  husband  or  wife  acquires  an  interest  in  the  other's 
land,  which  can  be  divested  only  by  joining  in  a  conveyance, 
a  power  to  sell  land  executed  by  a  single  man  or  woman  is 
necessarily  revoked  by  marriage  to  the  extent  of  such,  inter- 
est. It  has  been  held  in  Texas  that  such  a  power  executed  by 
a  single  man  is  revoked  entirely  by  marriage,21  but  in  Indiana 
it  has  been  held  that  such  a  power  might  be  exercised  not- 
withstanding marriage,  subject  only  to  such  rights  as  the  law 
conferred  upon  the  wife.28  It  would  seem  that  an  authority 
given  as  a  security,  although  not  technically  coupled  with 
an  interest,  would  not  be  impaired  by  marriage. 

«»  Ante,  p.  101. 

«»  Charnley  v.  Winstanley,  5  East,  266;  McCan  v.  O'Ferrall,  8  01. 
&  F.  30;  Judson  v.  Sierra,  22  Tex.  365;  Wambole  v.  Foote,  2  Dak.  1, 
2  N.  W.  239.  Cf.  Eneu  v.  Clark,  2  Pa.  234,  44  Am.  Dec.  191. 

2*  Ante,  p.  101. 

»B  Reynolds  v.  Rowley,  2  La.  Ann.  890. 

as  Ante,  p.  101. 

*T  Henderson  v.  Ford,  46  Tex.  627. 

This  must,  of  course,  rest  upon  the  presumed  Intention  of  the  prin- 
cipal, unless  the  husband's  deed  would  be  totally  inoperative  without 
Joinder  of  the  wife. 

as  Joseph  v.  Fisher.  122  Ind.  399,  23  N.  E.  856. 


jj  34r)  TERMINATION  BY  OPERATION   OF  LAW.  149 

Bankruptcy. 

The  bankruptcy  of  the  principal  terminates  the  authority  of 
the  agent  so  far  as  relates  to  rights  of  property  of  which  the 
principal  is  divested  by  the  bankruptcy,29  although  as  to  oth- 
er rights  the  authority  is  not  affected,30  nor  is  the  authority 
revoked  if  it  be  part  of  a  security  or  coupled  with  an  inter- 
est.31 The  revocation  dates  from  the  act  of  bankruptcy,  pro- 
vided an  adjudication  of  bankruptcy  follows,  but  the  doctrine 
of  relation  is  not  allowed  to  defeat  the ,  rights  of  an  in- 
tervening bona  fide  purchaser,  who  has  no  notice  of  the  act 
of  bankruptcy.*2 

The  bankruptcy  of  the  agent  terminates  his  authority  to 
receive  money  and  do  acts  of  a  like  nature,"  but  not  to  do 
merely  formal  acts.34  Termination  by  bankruptcy  of  the 
agent  appears  to  be  a  result  of  the  implied  intention  of  the 
principal,  rather  than  a  necessary  consequence  of  his  bank- 
ruptcy. 
War. 

As  has  already  been  stated,  war  terminates  all  commercial 
intercourse'  between  the  belligerent  countries,  and  hence  a  citi- 
zen of  one  country  cannot  appoint  an  agent  in  the  other.35 
For  the  same  reason  war  as  a  rule  terminates  an  agency  if 
the  principal  is  a  citizen  of  one  country  and  the  agent  a  citi- 
zen of  the  other.**  A  recognized  exception  to  the  rule  is  an 

a»  Minett  v.  Forrester,  4  Taunt  541;  Parker  v.  Smith,  16  East,  382; 
In  re  Daniels,  6  Biss.  (U.  S.)  405,  Fed.  Cas.  No.  3,566;  Wilson  v. 
Harris,  21  Mont.  374,  54  Pac.  46  (assignment  for  benefit  of  creditors); 
Elwell  v.  Coon  (N.  J.  Ch.)  46  Atl.  580  (assignment). 

Story,  Ag.  §  482. 

«o  Dixon  v.  Ewart,  3  Meriv.  322. 

»i  Dixon  v.  Ewart,  3  Meriv.  322;  Hall  v.  Bliss,  118  Mass.  554,  19 
Am.  Rep.  476;  post,  p.  153. 

«2  Ex  parte  Snowball,  L.  R.  7  Cb.  534,  548. 

»»  Audenried  v.  Betteley,  8  Allen  (Mass.)  302. 

»«  Story,  Ag.  §  486.  «»  Ante,  p.  104. 

»«  New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  24  L.  Ed.  453; 
Same  v.  Statham,  93  U.  S.  24,  23  L.  Ed.  789;  Ward  v.  Smith,  7  Wall. 
(U.  S.)  447,  19  L.  Ed.  207;  Howell  v.  Gordon,  40  Ga.  302. 


150  TERMINATION  OF  RELATION.  (Ch.  6 

agency  for  collection  of  debts,  where  the  agent  resides  in  the 
same  country  with  the  debtor.  Such  an  agency  is  not  neces- 
sarily and  as  matter  of  law  terminated,  yet  in  order  to  sub- 
sist it  must  have  the  assent  of  both  parties,  and  the  assent 
of  the  principal  is  not  to  be  presumed  unless  perhaps  it  is 
his  manifest  interest  that  the  agency  should  continue,  in 
which  case  it  will  be  presumed  unless  the  contrary  be  shown ; 
but  otherwise  assent  to  the  continuance  or  ratification  of  the 
agent's  act  must  .be  proved.  Furthermore,  no  payment  is 
good  or  capable  of  ratification  if  made  with  a  view  of  trans- 
mitting the  funds  to  the  principal  during  the  continuance  of 
the  war.87  The  exception  is  not  strictly  confined  to  agencies 
for  the  collection  of  debts,  but  extends  to  other  agencies, 
the  execution  of  which  does  not  involve  commercial  inter- 
course between  citizens  of  the  belligerents.  Thus,  in  a  recent 
case  in  the  Supreme  Court  of  the  United  States  it  was  held 
that  a  power  of  attorney  executed  by  a  married  woman  and 
her  husband,  authorizing  her  brother  to  sell  and  convey  real 
estate  owned  by  her  in  the  city  of  Washington,  was  not  re- 
voked by  the  Civil  War,  although  her  husband  became  an 
officer  of  the  Confederate  army,  and  he  and  she  remained 
within  the  Confederate  lines  during  the  war.88 

An  authority  coupled  with  an  interest  is  not  terminated  by 

*T  New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  24  L.  Ed.  453, 
and  cases  cited  note  36,  supra. 

«8  Williams  v.  Paine,  169  U.  S.  55,  18  Sup.  Ct.  279,  42  L.  Ed.  658. 
"It  is  not  every  agency,"  said  Peckham,  J.,  "that  is  necessarily  re- 
voked by  the  breaking  out  of  a  war.  *  *  *  Certain  kinds  of 
agencies  are  undoubtedly  revoked.  *  *  *  Agents  of  an  insurance 
company,  it  is  said,  would  come  within  that  rule.  New  York  Life 
Ins.  Co.  v.  Davis,  95  U.  S.  425,  24  L.  Ed.  453.  *  *  *  Agents  of  a 
life  insurance  company  are  undoubtedly  engaged  in  the  active  busi- 
ness of  their  principal.  Their  duty  is  to  receive  the  premiums  for 
all  policies  obtained  by  them,  and  to  transmit  such  premiums  to  the 
home  office.  *  *  *  It  is  easy  to  see  that  active  and  continuous 
business  of  such  a  nature  could  not  be  carried  on  during  a  war  where 
the  principal  and  agent  reside  in  the  different  countries  engaged  in 
such  war.  *  *  *  Under  the  circumstances  of  this  case,  we  think 


§  35)  NOTICE   TO   THIRD   PERSONS — ESTOPPEL.  151 

reason  that  the  principal  is  within  the  lines  of  the  enemy ; 89 
nor,  on  principle,  is  an  authority  given  as  a  security  thereby 
terminated. 


NOTICE    TO    THIRD    PERSONS-ESTOPPEL. 

35.  Where  a  principal  has  by  -words  or  conduct  represented, 
that  an  agent  is  authorized  to  act  on  his  behalf,  he  in 
bound  by  the  acts  of  the  agent,  notwithstanding  term- 
ination of  his  authority  otherwise  than  by  death,  bank- 
ruptcy, or  marriage  of  the  principal,  or  by  -war,  with 
respect  to  third  persons  dealing  with  the  agent  in  good 
faith  in  reliance  upon  snch  representation,  without 
notice  of  snch  termination. 1 

It  has  already  been  pointed  out a  that  if  the  principal  has 
held  out  an  agent  as  such  he  will  be  estopped  to  deny  the 
agency  as  against  third  persons  who  may  deal  with  the  agent 
in  reliance  upon  the  apparent  authority,  notwithstanding 
termination  of  the  agency  by  act  of  either  party.  The  same 
result  must  of  course  follow  notwithstanding  termination  of 
the  authority  by  express  or  implied  limitation,*  or  even,  in 
some  cases,  by  what  has  been  termed  operation  of  law.  No 
estoppel  in  favor  of  third  persons  can  arise  if  the  agency  has 
been  terminated  by  death,4  or  where  it  has  been  terminated 
by  the  marriage  B  or  bankruptcy  *  of  the  principal  to  thepreju- 

the  attorney  In  fact  had  the  right  to  make  the  conveyance  he  did.  It 
•was  not  an  agency  of  the  class  such  as  was  mentioned  in  New  York 
Life  Ins.  Co.  v.  Davis.  *  *  *  The  mere  fact  of  the  breaking  out 
of  a  war  does  not  necessarily  and  as  matter  of  law  revoke  every 
agency.  Whether  It  is  revoked  or  not  depends  upon  the  circum- 
stances surrounding  the  case  and  the  nature  and  character  of  the 
agency." 

39  Washington  University  v.  Finch,  18  Wall.  (U.  S.)  106,  21  L.  Ed. 
818;  Jones,  Mtg.  §  1800. 

§  35.     i  Of.  Bowstead,  Ag.  $  134. 

*  Ante,  p.  138.  *  Ante,  p.  144. 

«  See  cases  cited  ante,  p.  134,  note  6.  »  Ante,  p.  148. 

«  Except  as  to  the  rights  of  intervening  bona  fide  purchasers  before 
the  adjudication.  Ante,  p.  149. 


162  TERMINATION  OF  RELATION.  (Ch.  6 

dice  of  the  intervening  rights  of  other  persons,  or  where  the 
exercise  of  the  apparent  authority  would  be  illegal,  as  in  case 
of  war.7  But  an  estoppel  may  be  created  notwithstanding  the 
insanity  of  the  principal,8  and,  apparently,  notwithstanding 
the  insanity  •  or  bankruptcy  10  of  the  agent. 

IRREVOCABLE    AUTHORITY— AUTHORITY    GIVEN    AS 
SECURITY. 

36.  Where  an  authority  in  given  for  a  valuable  consideration, 

to  secure  or  effect  some  benefit,  independent  of  the 
agent's  compensation,  it  is  irrevocable  by  act  of  the 
principal  (and  is  not  terminated  by  the  death,  insanity, 
marriage,  or  bankruptcy  of  either  party,  or  by  war).1 
EXCEPTION— DEATH  OI  PRINCIPAL.  An  authority  which 
is  not  coupled  with  an  interest  is  terminated  by  the 
death  of  the  principal; 

SAME— AUTHORITY  COUPLED  WITH  AN  INTEREST. 

37.  An  authority  is  "coupled  with  an  interest,"  as  the  term  is 

generally  used  in  the  United  States,  when  it  is  vested 
in  one  in  whom  is  also  vested  such  an  interest  or  estate 
in  the  thing  which  is  the  subject  of  the  authority  that 
he  can  exercise  the  authority  in  his  own  name. 

i  Ante,   p.   149.  •  Ante,  p.  147. 

•  Ante,  pp.  100,  146.  10  Ante,  p.  149. 

§§  36-38.  i  The  rule  that  an  authority,  although  given  as  a  secu- 
rity, terminates  by  the  constituent's  death,  while  supported  by  weight 
of  authority,  is  based  upon  highly  artificial  reasoning.  It  is  submit- 
ted that  an  authority  given  as  a  security,  although  not  coupled  with 
an  interest,  is  not  terminated  by  the  occurrence  of  any  of  the  events 
above  enumerated  (except  the  death  of  the  principal),  whose  occur- 
rence would  cause  a  bare  power  to  terminate  by  operation  of  law. 
Their  occurrence  might,  indeed,  often  render  it  difficult  or  impossible 
to  enforce  the  security  without  resort  to  the  courts;  but  the  author- 
ity ought  not  to  be  held  to  have  terminated  because  of  the  difficulty, 
or  even  impossibility,  of  exercising  it  in  the  constituent's  name. 


§§  36-38)  IRREVOCABLE   AUTHORITY.  153 


SAME— AUTHORITY   TO   DISCHARGE   LIABILITY   INCUR- 
RED HY  AGENT. 

38.  Where  an  agent  l»  employed  to  do  an  act  involving  per- 
sonal liability,  and  is  given  authority  to  discharge 
such  liability  on  behalf  of  the  principal,  the  authority 
(it  seems)  becomes  irrevocable,  unless  the  principal 
otherwise  discharges  or  indemnifies  the  agent  against 
the  liability  as  soon  as  it  is  incurred.* 

Irrevocable  Authority. 

Although,  as  a  rule,  the  principal  may,  at  his  pleasure,  re- 
voke the  authority  of  an  agent,  it  is  possible  for  the  principal 
to  confer  upon  the  agent  or  a  third  person  such  a  right  to  the 
continuance  of  the  authority  as  to  render  it  irrevocable. 

If  an  authority  is  conferred  upon  a  person,  on  sufficient 
consideration,  for  the  purpose  of  securing  or  effecting  some 
benefit  to  him,  independent  of  his  compensation  as  agent, 
such  an  authority  is  irrevocable.  The  authority,  however, 
does  not  survive  the  death  of  the  principal  unless  it  is  vested 
in  one  in  whom  is  also  vested  such  an  interest  or  estate  in  the 
thing  which  is  the  subject  of  the  authority  that  it  can  be  ex- 
ercised in  his  own  name ;  in  other  words,  unless  the  authority 
is,  as  the  term  is  employed  in  the  United  States,  "coupled 
with  an  interest."  In  England,  while  the  rule  in  respect  to 
irrevocable  authorities  appears  to  be  substantially  the  same 
as  in  the  United  States,  the  term  "coupled  with  an  interest'' 
is  employed  in  a  different  sense,  and  is  applied  to  any  au- 
thority in  the  execution  of  which  the  person  invested  with  it 
has  such  an  interest  or  right  as  to  make  it  irrevocable.8  In 
other  words,  in  England  "authority  coupled  with  an  interest'' 
is  coextensive  with  "irrevocable  authority."  It  is  perhaps 
owing  to  the  different  meaning  which  is  attached  to  the  term 
"authority  coupled  with  an  interest"  by  different  courts  that 

»  Of.  Bowstead,  Ag.  §  129. 

•  Terwilliger  v.   Railroad  Co.,   149  N.   Y.  86,  43  N.  B.   432,  per 
Andrews.  C.  J. 


154  TERMINATION   OF  RELATION.  (Ch.  6 

there  is  some  confusion  in  the  cases  in  respect  to  the  nature  of 
the  right  or  interest  which  renders  an  authority  irrevocable. 
It  must  always  be  borne  in  mind  that,  to  make  the  author- 
ity irrevocable,  the  benefit  sought  to  be  secured  or  effected 
must  be  something  more  than  the  mere  advantage  or  profit 
which  the  agent  as  such  will  derive  from  the  continuance  of 
the  authority.  The  profit  that  will  accrue  to  the  agent  by 
way  of  compensation  for  his  services,  even  if  he  is  to  re- 
ceive a  share  of  the  proceeds,  as  of  a  sale  or  collection  to  be 
made  by  him,  is  not  sufficient.4  Nor,  unless  the  interest  is 
otherwise  sufficient,  is  an  authority  irrevocable  because  it  is 
a  term  of  the  contract  of  employment  that  it  shall  be  irrevo- 
cable.5 In  such  cases  the  law  deems  that  the  agent  is  suffi- 
ciently protected  by  his  right  of  action  for  breach  of  the 
contract. 

Same — Hunt  v.  Rousmanier 

The  leading  case  on  the  subject  of  irrevocable  authority  in 
the  United  States  is  Hunt  v.  Rousmanier.6  In  that  case 
Hunt  loaned  money  to  Rousmanier,  who  executed  his  notes 

«  Blackstone  v.  Buttermore,  53  Pa.  266;  Hartley's  Appeal,  53  Pa. 
212,  91  Am.  Dec.  207;  Oregon  &  W.  Mortg.  Sav.  Bank  v.  Mortgage 
Co.  (C.  C.)  35  Fed.  22;  Hall  v.  Gambrill  (C.  C.)  88  Fed.  709;  Cham- 
bers v.  Seay,  73  Ala.  372;  Gilbert  v.  Holmes,  64  111.  548;  Frink  v. 
Roe,  70  Cal.  296,  11  Pac.  820;  Simpson  v.  Carson,  11  Or.  361,  8  Pac. 
325;  Darrow  v.  St.  George,  8  Colo.  592,  9  Pac.  791;  Ballard  v.  Insur- 
ance Co.,  119  N.  C.  187,  25  S.  E.  956. 

The  fact  that  the  agent  was  entitled  to  commissions  on  rents  col- 
lected did  not  create  an  authority  coupled  with  an  interest.  Farmers' 
Loan  &  Trust  Co.  v.  Wilson,  139  N.  Y.  284,  34  N.  E.  784,  36  Am.  St. 
Rep.  696. 

s  Blackstone  v.  Buttermore,  53  Pa.  266;  Walker  v.  Denison,  86  111. 
142;  Flanagan  v.  Brown,  70  Cal.  254,  11  Pac.  706;  Woods  v.  Hart,  50 
Neb.  497,  70  N.  W.  53. 

"In  order  to  make  an  agreement  for  irrevocability  contained  In  a 
power  to  transact  business  for  the  benefit  of  the  principal,  binding 
on  him,  there  must  be  a  consideration  for  it  independent  of  the  com- 
pensation to  be  rendered  for  the  services  to  be  performed."  Black- 
stone  v.  Buttermore,  supra 

«  8  Wheat.  174,  5  L.  Ed.  589. 


§§  36-38)  IRREVOCABLE   AUTHORITY.  155 

for  the  amount,  and  a  day  or  two  after  executed  a  power  of 
attorney  authorizing  Hunt  to  execute  a  bill  of  sale  of  Rous- 
maniers  interest  in  a  certain  vessel  to  himself  or  any  other 
person,  and  to  collect  any  insurance  money  that  might  be- 
come due  in  the  event  of  the  vessel  being  lost.  The  instru- 
ment also  recited  that  the  power  was  given  for  collateral  se- 
curity for  payment  of  the  notes,  and  was  to  be  void  on  their 
payment,  but  that  in  case  of  nonpayment  Hunt  was  to  pay  the 
notes  out  of  the  proceeds,  and  return  the  residue.  It  was 
held  that  the  power,  since  it  contained  no  words  of  convey- 
ance or  assignment,  was  not  coupled  with  an  interest,  and 
hence  that,  although  it  would  have  been  irrevocable  by  Rous- 
manier,  it  expired  on  his  death. 

"It  becomes  necessary,"  said  Marshall,  C.  J.,  "to  inquire 
what  is  meant  by  the  expression  'a  power  coupled  with  an 
interest.'  Is  it  an  interest  in  the  subject  on  which  the  power 
is  to  be  exercised,  or  is  it  an  interest  in  that  which  is  pro- 
duced by  the  exercise  of  the  power?  We  hold  it  clear  that 
the  interest  which  can  protect  a  power  after  the  death  of  a 
person  who  creates  it  must  be  an  interest  in  the  thing  itself. 
In  other  words,  the  power  must  be  engrafted  on  an  estate  in 
the  thing.  The  words  themselves  would  seem  to  import  this 
meaning.  'A  power  coupled  with  an  interest'  is  a  power 
which  accompanies,  or  is  connected  with,  an  interest.  The 
power  and  the  interest  are  united  in  the  same  person.  But 
if  we  are  to  understand  by  the  word  'interest'  an  interest  in 
that  which  is  produced  by  the  exercise  of  the  power,  then 
they  are  never  united.  The  power,  to  produce  the  interest, 
must  be  exercised,  and  by  its  exercise  is  extinguished.  The 
power  ceases  when  the  interest  commences,  and,  therefore, 
cannot,  in  accurate  law  language,  be  said  to  be  'coupled'  with 
it." 

While  holding  that  the  power  in  question  terminated  with 
the  death  of  the  constituent,  because  it  was  not  coupled 
with  an  interest,  Chief  Justice  Marshall  was  of  the  opinion 
that  the  power  could  not  have  been  revoked  by  any  act  of  the 
principal  during  his  life,  drawing  a  distinction  between  a 


156  TERMINATION   OF  RELATION.  (Ch.  6 

power  "coupled  with  an  interest"  and  a  power  given  as  se- 
curity but  without  conveyance  or  assignment  of  any  interest. 
"Where  a  letter  of  attorney  forms  part  of  a  contract,  and 
is  a  security  for  money,  or  for  the  performance  of  any  act 
which  is  deemed  valuable,"  he  said,  "it  is  generally  made  ir- 
revocable in  terms,  or,  if  it  is  not  so,  is  deemed  irrevocable 
in  law.  Although  a  letter  of  attorney  depends,  from  its  na- 
ture, on  the  will  of  a  person  making  it,  and  may,  in  general, 
be  recalled  at  his  will ;  yet,  if  he  binds  himself  for  a  consid- 
eration, in  terms,  or  by  the  nature  of  his  contract,  not  to 
change  his  will,  the  law  will  not  permit  him  to  change  it. 
Rousmanier,  therefore,  could  not,  during  his  life  by  any  act 
of  his  own,  have  revoked  this  letter  of  attorney."  The  basis 
of  the  distinction  between  a  mere  authority  given  as  a  se- 
curity, which  terminates  with  the  life  of  the  principal,  and  a 
power  coupled  with  an  interest,  which  does  not  so  terminate, 
he  found  in  the  doctrine  that  an  authority  must  be  executed 
in  the  name  of  the  person  who  gives  it,  from  which  results 
the  legal  impossibility  of  the  exercise  of  the  authority  after 
the  death  of  the  person  in  whose  name  it  must  be  exercised — 
a  result  which  does  not  follow  if  the  interest  or  title  in  the 
thing  which  is  the  subject  of  the  agency  passes  with  the  pow- 
er, and  is  vested  in  the  person  by  whom  it  is  to  be  exercised, 
so  that  in  exercising  it  he  acts  in  his  own  name.  "The  power 
given  by  the  principal  is,  under  such  circumstances,'*  says 
Story,  "rather  an  assent  or  agreement  that  the  agent  may 
transfer  the  property  vested  in  him,  free  from  any  equities 
of  the  principal,  than  strictly  a  power  to  transfer."  7 

Same — American  Rule. 

The  definition  of  an  "authority  coupled  with  an  interest" 
given  by  Chief  Justice  Marshall  in  Hunt  v.  Rousmanier,  and 
the  distinction  drawn  by  him  between  a  power  coupled  with 
an  interest  and  a  mere  power  given  as  a  security,  have  gen- 
erally, if  not  universally,  been  approved  in  this  country.  Ac- 
cordingly it  is  declared  that  in  order  to  constitute  "an  au- 

T  Story,  Ag.  §  489. 


§§  36-38)  IRREVOCABLE  AUTHORITY.  157 

thority  coupled  with  an  interest"  the  agent  must  have  more 
than  a  mere  interest  by  way  of  security  in  the  exercise  of  the 
authority;  that  he  must  have  an  interest  in  the  thing  which 
is  the  subject  of  the  authority,  and  not  a  mere  interest  in 
that  which  is  produced  by  its  exercise.8  And  it  is  held,  on 
the  one  hand,  that  an  authority  given  upon  sufficient  consid- 
eration, for  the  purpose  of  securing  to  or  conferring  upon  the 
agent  some  benefit,  independent  of  his  compensation — as 
where  an  agent  is  authorized  to  sell  real  or  personal  prop- 
erty 9  or  to  collect  a  claim  10  and  apply  the  proceeds  to  the 
payment  of  a  debt,  or  is  authorized  to  confess  judgment — " 
is  irrevocable  by  the  act  of  the  principal ;  and,  on  the  other 
hand,  that  unless  the  authority  is  "coupled  with  an  interest," 
as  above  defined,  the  authority  terminates  upon  the  death  of 
the  principal,1*  but  that  if  it  is  coupled  with  an  interest  it 
survives.18 

s  State  v.  Walker,  125  U.  S.  339,  8  Sup.  Ct.  929,  31  L.  Ed.  769;  Stler 
v.  Insurance  Co.  (C.  C.)  58  Fed.  843;  Johnson  R.  Signal  Co.  v.  Sig- 
nal Co.  (C.  C.)  59  Fed.  20.  And  see  cases  cited  in  notes  4  and  5,  supra. 

»  Posten  v.  Rassette,  5  Cal.  467;  Hutchins  v.  Hebbard,  34  N.  Y. 
27;  Denson  v.  Thurmond,  11  Ark.  586;  Gausen  v.  Morton,  10  B.  &  C. 
731;  Terwilliger  v.  Railroad  Co.,  149  N.  Y.  86,  43  N.  E.  432.  Contra: 
Mansfield  v.  Mansfield,  6  Conn.  559,  16  Am.  Dec.  76. 

A  power  to  enter  upon  and  sell  and  convey  land,  given  for  a.  con- 
sideration of  $5,  held  Irrevocable.  Montague  v.  McCarroll,  15  Utah, 
318,  49  Pac.  418. 

10  Marzion  v.  Pioche,  8  Cal.  522. 

11  Kindig  v.  March,  15  Ind.  248. 

Otherwise  if  without  consideration,  and  not  as  security  for  a  debt. 
Evans  v.  Fearne,  16  Ala.  689.  50  Am.  Dec.  197. 

12  McGriff  v.  Porter,  5  Fla.  373;   Huston  v.  Cantril,  11  Leigh  (Va.) 
136;   Hougbtaling  v.  Marvin,  7  Barb.  (N.  Y.)  412. 

Where  to  secure  a  loan  the  borrower  executed  an  instrument  au- 
thorizing the  lender  on  default  in  payment  to  enter  and  take  away 
and  sell  certain  slaves,  and  from  the  proceeds  pay  himself,  returning 
the  overplus,  the  power  was  revoked  by  the  grantor's  death.  Mc- 
Griff v.  Porter,  5  Fla.  373. 

is  Leavitt  v.  Fisher,  4  Duer  (N.  Y.)  1;  Houghtaling  v  Marvin,  7 
Barb.  (N.  Y.)  412.  See  Willingham  v.  Rushing,  105  Ga.  72,  31  S.  E. 
130. 


158  TERMINATION   OP   RELATION.  (Ch.  6 

In  accordance  with  this  distinction,  it  has  been  held  that 
the  power  of  sale  in  an  ordinary  mortgage,  being  coupled 
with  an  interest  or  estate,  is  not  revoked  by  the  death  of  the 
mortgagor;14  but  in  states  where  by  statute  a  mortgage  is 
declared  to  be  a  mere  security  for  debt,  passing  no  title 
or  estate  in  the  land  to  the  mortgagee,  the  power  of  sale 
has  generally  been  held  to  be  incapable  of  execution  after 
the  death  of  the  mortgagor.15  An  authority  which  is  coupled 
with  an  interest  is  not  revoked  by  the  bankruptcy  ie  or  in- 
sanity17 of  the  principal,  or  by  war;18  and  it  would  seem 
that  the  result  would  be  the  same  if  the  authority  were  given 
as  a  security  so  as  to  be  irrevocable  by  act  of  the  principal, 
although  not,  strictly  speaking,  coupled  with  an  interest.19 

Yet,  in  spite  of  the  almost  universal  acceptance  of  Hunt  v. 
Rousmanier  as  a  correct  statement  of  the  law,  it  must  be 
conceded  that  many  cases  have  given  a  broader  interpreta- 
tion to  the  term  "coupled  with  an  interest"  than  can  be  justi- 
fied by  the  language  or  the  reasoning  of  that  decision,  which 

i*  Varnum  v.  Meserve,  8  Allen  (Mass.)  158;  Bergen  v.  Bennett,  1 
Caines,  Cas.  (N.  Y.)  1,  2  Am.  Dec.  281;  Berry  v.  Skinner,  30  Md.  567; 
Hudgins  v.  Morrow,  47  Ark.  515,  2  S.  W.  104;  Harvey  v.  Smith,  179 
Mass.  592,  61  N.  E.  217  (chattel  mortgage);  Jones,  Mtg.  §  1792. 

"Strictly  speaking,  a  mortgage  vests  the  whole  legal  estate  in  the 
mortgagee.  His  title  to  the  land  is  complete  as  a  legal  title,  and  the 
power  of  sale  is  to  relieve  him  of  the  equities  attached  to  the  mort- 
gage." Per  Hoar,  J..  Varnum  v.  Meserve,  supra. 

IB  Wilkins  v.  McGehee,  86  Ga.  764,  13  S.  E.  84;  Johnson  v.  John- 
son, 27  S.  C.  309,  3  S.  E.  606,  13  Am.  St.  Rep.  636.  Otherwise  when 
other  provisions  of  statute  declare  the  power  to  be  a  trust  and  part  of 
the  security.  Reilly  v.  Phillips,  4  S.  D.  604,  57  N.  W.  780. 

le  Hall  v.  Bliss,  118  Mass.  554,  19  Am.  Rep.  476. 

Where  the  owner  of  shares  of  stock  in  a  national  bank  delivered 
his  certificate,  together  with  a  power  of  attorney  to  transfer  the  same, 
to  secure  his  note,  the  power  was  coupled  with  an  interest,  and  was 
not  revoked  by  the  bankruptcy  of  the  constituent  Dickinson  v. 
Bank,  129  Mass.  279,  37  Am.  Rep.  351.  See,  also,  Crowfoot  v.  Gur- 
ney,  9  Bing.  372;  ante,  p.  149. 

IT  Berry  v.  Skinner,  30  Md.  567;   ante,  p.  146. 

is  Ante,  p.  150.  "Ante,  p.  158,  notes  9-11. 


§§  36-38)  IRREVOCABLE  AUTHORITY".  159 

demands  that  the  authority  be  accompanied  by  a  conveyance 
or  assignment  of  the  legal  title.20  Thus,  in  the  leading  case 
of  Knapp  v.  Alvord,*1  where  the  power  authorized  the  at- 
torney to  sell  personal  property  and  to  apply  the  proceeds 
to  the  payment  or  security  of  a  note  indorsed  by  himself  and 
another,  it  was  held  that  the  fact  that  the  power  was  accom- 
panied by  a  delivery  of  possession  was  enough  to  couple  the 
power  with  an  interest,  and  that  the  power  survived  the  death 
of  the  constituent.  "As  the  possession  of  the  property  was 
delivered  to  Meads,"  said  Chancellor  Walworth,  "in  connec- 
tion with  this  power  to  dispose  of  it  for  the  security  and  pro- 
tection of  himself  and  the  other  indorsers,  the  property  must 
be  considered  as  pledged  to  him  for  that  purpose.  The  pow- 
er to  sell,  therefore,  was  coupled  with  an  interest  in  the  prop- 
erty thus  pledged,  and  survived."  Indeed,  the  reasoning  of 
the  chancellor  goes  far  to  show  that  he  would  have  been 


*o  Where  the  agent  was  authorized  to  sell  goods,  and  out  of  the 
proceeds  pay  liens  and  other  claims,  and  apply  the  balance ,  to  pay- 
ment of  notes  held  by  him,  the  authority  was  not  extinguished  by  the 
principal's  death.  Merry  v.  Lynch,  68  Me.  94. 

Where  an  instrument  authorized  an  attorney  to  collect  rents  from 
mortgaged  premises,  and  to  apply  upon  the  mortgage,  and  contained 
a  clause  assigning  as  security  the  rents  under  the  present  or  any 
future  lease,  the  authority  was  not  revoked  by  death  of  the  grantor. 
Kelly  v.  Bowerman,  113  Mich.  446,  71  N.  W.  836. 

An  agreement  between  joint  owners  of  land,  providing  that  either 
may  sell  to  pay  purchase-money  notes,  and  that  the  legal  title,  if 
either  dies  before  the  notes  are  payable,  shall  vest  in  the  survivor, 
to  sell  and  dispose  of  and  to  pay  such  notes,  is  an  authority  coupled 
with  an  interest,  which  does  not  terminate  on  the  death  of  one  of  the 
parties.  Carleton  v.  Hausler,  20  Tex.  Civ.  App.  275,  49  S.  W.  118. 

Where  the  principal  executed  an  agreement  authorizing  the  agent 
to  collect  certain  rents,  and  apply  them  on  the  principal's  indebted- 
ness, the  authority  was  coupled  with  an  interest,  and  did  not  ter- 
minate upon  the  principal's  death.  Stephens  v.  Sessa,  50  App.  Div. 
547,  64  N.  Y.  Supp.  28. 

See,  also,  Raymond  v.  Squire,  11  Johns.  (N.  Y.)  46;  Keilly  y.  Phil- 
lips, 4  S.  D.  604,  57  N.  W.  780. 

21  10  PaJce  (N.  Y.)  205,  40  Am.  Dec.  241. 


160  TERMINATION  OF  RELATION.  (Ch.  6 

willing  to  rest  the  decision  upon  the  existence  of  an  equitable 
lien  upon  the  property,  which  he  was  satisfied  was  created 
by  the  clause  in  the  power  authorizing  the  sale  of  the  prop- 
erty, and  the  application  of  the  proceeds  to  the  payment  of 
the  notes  secured.  And  upon  principle  it  is  submitted  that 
this  view  is  correct,  and  that  such  a  power,  although  con- 
taining no  words  of  conveyance  or  assignment,  is  properly  to 
be  construed  in  connection  with  all  the  circumstances  as  cre- 
ating an  equitable  lien  or  right  enforceable  by  the  courts, 
even  after  the  death  of  the  constituent.2* 

Same — English  Rule. 

The  English  decisions  appear  in  the  main  to  be  in  accord 
with  the  decisions  in  this  country,  although  a  different  and 
broader  definition  is  given  to  the  term  "authority  coupled 
with  an  interest."  In  Walsh  v.  Whitcomb,23  where  an  insol- 
vent executed  a  power  of  attorney  together  with  a  general 
assignment  of  all  his  effects  to  a  creditor,  authorizing  the  at- 
torney to  collect  all  outstanding  debts  for  the  benefit  of  cred- 
itors, it  was  held  that  the  principal  could  not  revoke  the  pow- 
er. "There  is,"  said  Lord  Kenyon,  "a  difference  in  cases  of 
powers  of  attorney ;  in  general  they  are  revocable  from  their 
nature,  but  there  are  these  exceptions:  'Where  a  power  of 
attorney  is  part  of  a  security  for  money,  then  it  is  not  revoca- 
ble ;  where  a  power  of  attorney  was  made  to  levy  a  fine,  as 
part  of  a  security,  it  was  held  not  to  be  revocable ;  the  princi- 
ple is  applicable  in  every  case  where  a  power  of  attorney  is 
necessary  to  effect  any  security ;  such  is  not  revocable.'  "  In 
Watson  v.  King  24  it  was  held  that  an  authority  to  sell  certain 
shares  of  a  ship  given  by  a  debtor  to  his  creditor  terminated 
upon  the  constituent's  death.  The  power  was  not  accompa- 

22  See  Bowstead,  Ag.  §  129. 

Cf.  American  Loan  &  Trust  Co.  v.  Billings,  58  Minn.  187,  59  N.  W. 
998. 

*s  2  Esp.  565  (1797). 

«*  4  Camp.  272  (1815).    See,  also,  Lepard  v.  Vernon,  2  Ves.  &  B.  51. 


§§  36-38)  IRREVOCABLE  AUTHORITY.  161 

nied  by  an  assignment,  and  the  decision  is  thus  in  accord  with 
Hunt  v.  Rousmanier ;  but  it  is  to  be  observed  that  Lord  El- 
lenborough  referred  to  the  power  as  a  "power  coupled  with  an 
interest,"  saying  that  as  such  it  was  necessarily  revoked  by  the 
principal's  death,25  whereas  Chief  Justice  Marshall,  employ- 
ing the  term  with  a  different  meaning,  would  have  declared 
that  the  power  was  revoked  by  the  principal's  death  because 
it  was  not  coupled  with  an  interest.  In  Raleigh  v.  Ander- 
son,28 goods  having  been  consigned  to  a  factor  for  sale  with 
a  limit  as  to  the  price,  he  made  advances,  and  afterwards  the 
principal  gave  him  authority  to  sell  at  the  market  price,  and 
to  retain  the  amount  of  his  advances.  It  was  held  that  the 
authority  was  revocable,  because  there  was  no  consideration 
for  the  agreement.  In  Gansen  v.  Morton  2T  it  was  held  that  a 
power  of  attorney  executed  by  a  debtor  and  authorizing  his 
creditor  to  sell  certain  lands  and  to  discharge  his  debt  out  of 
the  proceeds  was  coupled  with  an  interest  and  irrevocable  by 
act  of  the  principal.  In  Smart  v.  Sandars  28  it  was  held  that 
a  factor  to  whom  goods  had  been  consigned  for  sale  did  not, 
by  making  advances,  acquire  such  an  interest  as  to  render  the 
authority  irrevocable ;  while  it  was  said  that,  if  the  advances 
had  been  made  in  consideration  of  an  agreement  that  the 
authority  to  sell  should  not  be  revoked,  it  would  have  been 
irrevocable.  Wilde,  C.  J.,  after  referring  to  the  cases  above 
cited,  said :  "The  result  appears  to  be  that  where  an  agree- 
ment is  entered  into  on  a  sufficient  consideration,  whereby  an 
authority  is  given  for  the  purpose  of  securing  some  benefit 
to  the  donee  of  the  authority,  such  an  authority  is  irrevoca- 
ble. That  is  what  is  meant  by  an  authority  coupled  with  an 

88  "A  power,  coupled  with  an  interest,  cannot  be  revoked  by  the 
person  granting  it;  but  It  is  necessarily  revoked  by  his  death.  How 
can  a  valid  act  be  done  in  the  name  of  a  dead  mail?"  Per  Lord 
Ellenborough,  Watson  v.  King,  4  Camp.  272. 

zo  6  M.  &  W.  670  (1830). 

**  10  B.  &  C.  731  (1830). 

**  5  C.  B.  895  (1848). 
TIFF.P.&  A.— 11 


162  TERMINATION  OP  RELATION.  (Ch.  6 

interest,  and  which  is  commonly  said  to  be  irrevocable/' 
This  rule  has  been  approved  by  later  cases.20 

It  is  to  be  observed  that,  in  spite  of  the  different  use  of 
the  term  "authority  coupled  with  an  interest,"  the  rule  de- 
clared by  Wilde,  C.  J.,  differs  little,  if  at  all,  from  that  de- 
clared by  Marshall,  C.  J.,  when  he  said  that  "where  a  letter 
of  attorney  forms  part  of  a  contract,  and  is  a  security  for 
money,  or  for  the  performance  of  any  act  which  is  deemed 
valuable,  it  .  *  *  *  is  deemed  irrevocable  in  law." 80 
Whether  such  an  authority,  if  not  accompanied  by  the  con- 
veyance or  assignment  of  an  interest  in  the  thing,  is  revoked 
by  the  death  of  the  principal  does  not  appear  to  have  been 
considered  in  any  English  case  since  Watson  v.  King.81 

Same — Authority  for  Benefit  of  Third  Person. 

It  is  not  necessary,  in  order  to  render  an  authority  ir- 
revocable, that  it  be  vested  in  the  person  to  be  benefited  by 
its  exercise,  but  the  beneficiary  may  be  a  third  person.82 
Thus,  where  a  debtor  authorizes  another  to  sell  property  and 

29  De  Comas  v.  Prost,  3  Moore,  P.  C.  (N.  S.)  158;  Clerk  v.  Laurie, 
2  H.  &  N.  199. 

P.  promoted  a  company  for  the  purpose  of  purchasing  from  him 
and  working  a  mining  property.  C.  signed  an  underwriting  letter 
addressed  to  P.,  by  which  he  agreed,  in  consideration  of  a  commis- 
sion, to  subscribe  for  1,000  shares  In  the  company,  and  that  the  agree- 
ment and  application  should  be  irrevocable,  and,  notwithstanding  any 
repudiation  by  him,  should  be  sufficient  to  authorize  P.  to  apply  for 
the  shares  on  behalf  of  C.,  and  the  company  to  allot  them.  P.,  by 
letter,  accepted  the  terms.  Subsequently  C.  wrote  to  P.,  and  to  the 
company,  repudiating  the  agreement;  but  P.  applied  on  behalf  of  C. 
for  the  shares,  and  the  company  allotted  them,  and  placed  C.'s  name 
on  the  register.  Held,  thSt  C.  was  not  entitled  to  have  his  name 
removed,  since  the  authority  was  coupled  with  an  interest,  and  there- 
fore not  revocable.  Lopes,  L.  J.,  said:  "The  object  was  to  enable 
Mr.  Phillips,  the  vendor,  to  obtain  his  purchase  money,  and  *  *  * 
it  therefore  conferred  a  benefit  on  the  donee  of  the  authority."  Han- 
nan's  Empress  Gold  Mining  &  D.  Co.  [1896]  2  Ch.  643. 

so  Ante,  p.  156.  «i  Supra.     See  Bowstead,  Ag.  322. 

82  Walsh  v.  Whitcomb,  2  Esp.  565;  Kindig  v.  March,  15  Ind.  248 
(warrant  of  attorney  to  confer  judgment). 


§§  36-38)  IRREVOCABLE  AUTHORITY.  1C3 

to  pay  the  proceeds  to  a  creditor,  the  authority  becomes 
irrevocable  upon  the  creditor's  acceptance  of  the  security.81  • 
If  the  authority  is  accompanied  by  a  conveyance  or  assign- 
ment of  an  interest,  the  authority  is  not  revoked  by  the  prin- 
cipal's death.84  So,  if  a  debtor,  having  funds  in  the  hands 
of  an  agent,  authorizes  him  to  pay  the  debtor's  creditor,  and 
the  agent  promises  the  creditor  to  pay  him  or  to  hold  the 
funds  to  his  use,  the  principal  can  no  longer  revoke  the  au- 
thority, nor  would  it  be  revoked  by  his  death.88 

Same — Authority  to  Discharge  Liability  Incurred  by  Agent. 
While  an  authority  conferred  for  the  benefit  of  the  prin- 
cipal, and  not  as  a  means  of  securing  some  benefit  to  the 
agent,  is  ordinarily  revocable,88  it  seems  that  an  authority 
may  become  irrevocable  if  its  continuance  is  necessary  to  se- 
cure the  agent  against  liability  already  incurred  in  favor  of 
a  third  person.  It  is  true  that  the  principal  must  indemnify 
the  agent  for  any  loss  sustained  or  liability  incurred  in  the 
course  of  the  agency,  and  this  is  ordinarily  the  agent's  sole 
protection  or  security.87  But  if  an  agent  is  employed  to  do 
an  act  involving  personal  liability,  and  is  given  authority  to 
discharge  the  liability  on  behalf  of  the  principal,  it  would  be 
manifestly  unjust  to  permit  the  principal  to  revoke  the  au- 
thority after  the  liability  has  been  incurred,  at  least  without 
fully  indemnifying  the  agent.  For  example,  if  an  agent  is 

»»  American  Loan  &  Trust  Co.  v.  Billings,  58  Minn.  187,  59  N.  W. 
898. 

«*  Hunt  v.  Rousmanier,  8  Wheat  (U.  S.)  174,  5  L.  Ed.  589. 

Where  a  deed  or  a  power  of  attorney  executed  by  a  member  of  an 
•underwriters'  association  authorized  the  agent  to  adjust  and  pay 
losses,  and  provided  for  a  deposit  of  money  by  the  members  with 
the  agent,  which  was  a  trust  fund  for  protection  of  the  insured,  the 
power  was  coupled  with  an  interest,  and  was  not  revoked  by  death 
of  a  member  as  to  losses  under  policies  issued  during  his  lifetime. 
Durbrow  v.  Eppens,  65  N.  J.  Law,  10,  46  Atl.  582. 

SB  Crowfoot  v.  Gurney,  9  Bing.  372;  Hodgson  v.  Anderson,  3  B.  & 
C.  842;  Goodwin  v.  Bowden,  54  Me.  425;  Simonton  v.  Bank,  24  Minn. 
216;  ante,  p.  379. 

»«  Ante,  p.  136.  »?  Post,  p.  456. 


164  TERMINATION  OF  RELATION.  (Gh.  6 

authorized  to  make  a  contract  in  his  own  name,  and  to  dis- 
charge it  out  of  moneys  of  the  principal  in  his  hands,  it  seems 
that  the  authority  to  use  the  funds  for  that  purpose  becomes 
irrevocable  as  soon  as  the  contract  has  been  entered  into, 
provided  that  the  principal  does  not  himself  discharge  the 
contract  or  provide  other  funds,  or  at  least  secure  the  agent 
against  loss.  Perhaps  there  is  no  decision  which  directly  sus- 
tains this  proposition,"  but  its  soundness  has  been  approved 
by  high  authority.*  • 

»»  See  Read  v.  Anderson,  10  Q.  B.  D.  100,  affirmed  13  Q.  B.  D.  781; 
Hess  v.  Rau,  95  N.  Y.  359.  affirming  17  J.  D.  S.  324.  Of.  Seymour  v. 
Bridge,  14  Q.  B.  D.  460;  Perry  v.  Barnett,  15  Q.  B.  Div.  460;  Tatam 
v.  Reeve  L1893]  1  Q.  B.  44;  Anson,  Contr.  359. 

In  Read  v.  Anderson,  supra,  it  was  held  that  a  turf  commission 
agent  could  recover  the  amount  of  bets  made  by  him  in  his  own  name 
at  the  request  of  and  for  defendant,  and  paid  by  the  plaintiff  to  the 
winners,  although  defendant  had  directed  him  not  to  pay.  The  trial 
judge  took  the  view  that  the  agent's  authority  to  pay  the  bets  if  lost 
was  a  security  against  any  loss  which  might  result  from  the  per- 
sonal obligation  to  pay  the  bets,  and  was  thus  coupled  with  an  inter- 
est, and  that  it  was  immaterial  that  the  obligation  was  not  legally 
enforceable,  since  its  nonfulfillment  would  injure  the  plaintiff's  busi- 
ness. It  was  said  that  the  case  might  be  supported  on  the  ground 
that  the  principal  was  bound  to  indemnify  the  agent  against  the  con- 
sequences of  the  act.  The  judgment  was  affirmed  by  the  court  of 
appeal  apparently  on  the  second  ground.  "The  plaintiff,"  said 
Bowen,  Jr.,  "has  placed  himself  in  a  position  of  pecuniary  difficulty 
at  the  defendant's  request,  who  impliedly  contracted,  I  think,  to  In- 
demnify him  from  the  consequences  which  would  ensue,  in  the  or- 
dinary course  of  his  business,  from  this  step." 

It  is  true  that  where  a  debtor,  having  funds  in  the  hands  of  an 
agent,  authorizes  him  to  pay  a  creditor,  and  the  agent  promises  the 
creditor  to  pay,  the  authority  is  irrevocable,  but  in  that  case  the 
creditor  acquires  an  irrevocable  right  with  respect  to  the  funds. 
Crowfoot  v.  Gurney,  9  Bing.  372;  Hodgson  v.  Anderson,  3  B.  &  C. 
842;  Goodwin  v.  Bowden,  54  Me.  425;  Simonton  v.  Bank,  24  Minn. 
216. 

89  "if  a  principal  employs  an  agent  to  perform  an  act,  and  if  upon 
revocation  of  the  authority  the  agent  will  be  by  law  exposed  to  loss 
or  suffering,  the  authority  cannot  be  revoked.  But  in  the  present 


§§  36-38)  IRREVOCABLE   AUTHORITY.  165 

case  no  claim  could  be  lawfully  enforced  against  the  agent."  Per 
Brett,  M.  R.,  dissenting,  Read  v.  Anderson,  10  Q.  B.  Div.  100. 

"There  is  a  qualification  of  the  rule  where  the  agent  has  entered 
upon  the  execution  of  the  authority  before  revocation,  and  has  so 
bound  himself  that  a  retraction  of  the  authority  would  subject  him 
to  liability.  In  such  cases  the  principal  cannot  revoke  the  authority 
as  to  the  part  of  the  transaction  remaining  unexecuted,  at  least  not 
•without  indemnifying  the  agent"  Per  Andrews,  C.  J.,  In  Terwilliger 
T.  Railroad  Co.,  149  N.  Y.  86,  43  N.  K.  432. 

See  Story,  Ag.  §§  446,  447;  Huffcut,  Ag.  (2d  Ed.)  87,  89;  Bowstead. 
Dig.  Ag.  321. 


166  CONSTRUCTION  OF  AUTHORITY.  (Ch.  7 

CHAPTER  VH. 

CONSTRUCTION  OF  AUTHORITY. 

89.    Express  Authority— Power  of  Attorney. 

40.  Informal  Authority. 

41.  Ambiguous  Authority. 

42.  Implied  Authority. 

43.  Express  Authority— Incidental  Powers  Implied. 

44.  Powers  Implied  from  Usage* 

In  General. 

In  the  preceding  chapters  we  have  considered  how  the 
relation  of  principal  and  agent  may  be  created,  and  also  some 
other  matters  closely  connected  with  that  question.  We 
have  seen  that  in  what  may  be  called  the  normal  type  of 
agency  the  relation  is  created  by  the  principal's  appointment 
or  prior  authorization  of  the  agent  to  act  for  him  in  bringing 
him  into  legal  relations  with  third  persons.  When  the  re- 
lation of  principal  and  agent  is  thus  established,  the  act  of 
the  agent,  pursuant  to  the  authority  conferred  upon  him,  is 
the  act  of  the  principal,  and  as  between  the  principal  and 
third  persons,  with  whom  the  agent  deals,  the  same  rights 
and  obligations  ordinarily  result  as  if  the  principal  dealt  in 
person.1  The  power  of  the  agent,  indeed,  under  these  cir- 
cumstances, to  subject  his  principal  to  liabilities  in  favor  of 
third  persons,  is  not  confined  to  cases  in  which  the  acts  of 
the  agent  are  done  pursuant  to  the  authority  actually  con- 
ferred; for,  as  we  shall  see,3  the  principal  may  be  bound  if 
the  agent  acts  in  excess  of  his  actual  authority,  provided  he 
acts  within  his  so-called  "apparent"  or  "ostensible"  author- 
ity. In  very  many  cases,  however,  no  question  of  "apparent" 
authority  is  involved,  and  the  rights  and  obligations  which 
arise  between  the  principal  and  third  persons  depend  solely 
upon  the  actual  authority  of  the  agent. 

i  Post,  p.  182.  »  Post,  p.  180  et  seq. 


§§  39-41)  EXPRESS  AUTHORITY.  167 

Again,  when  the  relation  of  principal  and  agent  has  once 
become  established,  certain  rights  and  obligations  arise  as 
between  principal  and  agent.*  It  is  the  duty  of  the  agent  to 
conform  strictly  to  the  authority  actually  conferred  upon 
him.  Any  departure  on  his  part  from  the  terms  of  his  au- 
thority is  a  breach  of  his  implied  undertaking  to  obey  the  in- 
structions of  his  principal,  rendering  him  liable  to  respond 
in  damages  for  any  resulting  loss,  and  in  many  cases  work- 
ing a  total  forfeiture  of  his  right  to  remuneration,  reim- 
bursement, or  indemnity.* 

Finally,  the  rights  and  obligations  arising  between  the 
agent  and  third  persons  with  whom  he  deals  may  depend 
upon  the  authority  actually  conferred  upon  him." 

It  is  important,  therefore,  before  entering  in  detail  upon 
a  consideration  of  the  respective  rights  of  ti.e  various  sets 
of  parties,  to  consider  the  nature  and  extent  of  the  actual 
authority  conferred  upon  the  agent  by  appointment.  The 
object  in  each  case  is  to  ascertain  the  intention  of  the  prin- 
cipal as  expressed  by  him,  or  to  be  inferred  from  his  conduct, 
interpreted  in  the  light  of  the  surrounding  circumstances. 
The  question  is  therefore  one  of  construction  or  interpreta- 
tion. The  rules  applicable  are  in  the  main  similar  to  those 
which  apply  to  the  construction  and  interpretation  of  con- 
tracts. 

EXPRESS   AUTHORITY— POWER    OF   ATTORNEY. 

39.  A  formal  power  of  attorney  is  strictly  construed,  as  giv- 
ing only  such,  authority  as  it  confers  expressly  or  by 
necessary  implication.  Therefore— 

(1)  The    operative   part   of   the   power   i*    controlled    by   the 

recitals ; 

(2)  Where   authority  to   do   particular  acts   I*   followed   by 

general  words,  they  are  construed  as  enlarging  the 
authority  only  so  far  a*  necessary  to  accomplish  the 
particular  acts. 

»  Post,  pp.  885,  439.      *  Post,  pp.  396,  454.       P  Post,  pp.  330-394. 


168  CONSTRUCTION  OF  AUTHORITY.  (Ch.  7 


SAME— INFORMAL  AUTHORITY. 

40.  Where    authority    is    expressly    conferred   upon    an   agent 

otherwise  than  by  formal  power  of  attorney,  the  au- 
thority is  construed  liberally,  -with  a  view  to  accom- 
plishing the  object  of  the  authority  and  in  the  light 
of  the  usages  of  business. 

SAME— AMBIGUOUS  AUTHORITY. 

41.  Where  authority  is  conferred  in  such  terms  as  to  Be  capa- 

ble of  more  than  one  construction,  an  act  done  by  the 
agent,  in  good  faith,  which,  is  warranted  by  one  con- 
struction, is  deemed  to  have  been  authorized,  although 
that  construction  -was  not  intended  by  the  principal. 

Power  of  Attorney. 

A  formal  power  of  attorney  must  be  strictly  construed. 
To  bring  an  act  within  the  authority  conferred,  it  must  ap- 
pear, on  a  fair  construction  of  the  whole  writing,  that  the 
authority  is  to  be  found  within  the  four  corners  of  the  in- 
strument, either  by  express  terms  or  necessary  implication.1 
For  example,  a  power  to  confess  judgment  at  a  specified 
term  of  court  does  not  confer  authority  to  confess  judgment 
at  a  later  term ;  *  a  power  to  "negotiate,  make  sale,  dispose 
of,  assign,  and  transfer"  promissory  notes  does  not  include 
power  to  pledge ;  *  and  it  has  even  been  held  that  a  power 

§§  39-41.  lAttwood  v.  Munnings,  7  B.  &  O.  278;  Withington  v. 
Herring,  5  Bing.  442,  458;  Bryant  v.  La  Banque  du  People  [1893] 
A.  C.  170;  Rossiter  v.  Rossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  62; 
Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150;  Brantley  v. 
Insurance  Co.,  53  Ala.  554;  Gilbert  v.  How,  45  Minn.  121,  47  N.  W. 
643,  22  Am.  St.  Rep.  724. 

»  Rankln  v.  Eakin,  3  Head  (Tenn.)  229. 

»  Jommenjoy  Coondoo  v.  Watson,  9  App.  Gas.  561. 

It  is  not  necessary  to  invoke  the  rule  of  strict  construction  to  hold 
that  power  to  sell  real  estate  does  not  include  power  to  mortgage. 
Wocd  v.  Goodridge,  6  Gush.  (Mass.)  117,  52  Am.  Dec.  771;  Jeffrey  v. 
Hursh,  49  Mich.  31,  12  N.  W.  898;  Morris  v.  Watson,  15  Minn.  212 
(Gil.  165). 


§§  39-41)  EXPRESS  AUTHORITY.  169 

to  sell  real  estate  does  not  cover  land  subsequently  acquired 
by  the  constituent.*  Authority  to  act  in  the  name  of  the 
principal,  unless  a  contrary  intention  appears,  confers  au- 
thority to  act  only  in  his  individual  business,  and  for  his 
personal  benefit.6  Thus,  a  power  authorizing  an  agent  to 
execute  or  indorse  bills  or  notes  in  the  name  of  the  prin- 
cipal does  not  authorize  their  execution  or  indorsement  for 
the  agent's  own  benefit  *  or  for  the  accommodation  of  a 
stranger ; T  nor  will  separate  powers  given  to  one  agent  by 
two  persons,  authorizing  him  to  execute  and  indorse  notes 
in  their  names,  respectively,  authorize  him  to  make  a  joint 
note  in  the  name  of  both  principals.8 

On  the  other  hand,  "the  object  of  the  parties  is  to  be 
kept  in  view,  and  when  the  language  used  will  permit  that 
construction  should  be  adopted  which  will  carry  out  instead 
of  defeating  the  purpose  of  the  appointment."  •  For  this  rea- 

«  Penfold  v.  Warner,  96  Mich.  179,  55  N.  W.  680,  35  Am.  St  Rep. 
591.  See,  also,  Weare  v.  Williams,  85  Iowa,  253,  52  N.  W.  328.  But 
see  Fay  v.  Winchester,  4  Mete.  (Mass.)  513;  Bigelow  v.  Livingston, 
28  Minn.  57,  9  N.  W.  31;  Benschoter  v.  Lack,  24  Neb.  251,  38  N.  W. 
746. 

»  Attwood  v.  Mnnnings,  7  B.  &  C.  278;  North  River  Bank  v.  Aymar, 
8  Hill  (N.  Y.)  262;  Adams  Exp.  Co.  v.  Trego.  35  Md.  47;  Harris  v. 
Johnston,  54  Minn.  177,  55  N.  W.  970,  40  Am.  St.  Rep.  312;  Wilson  \. 
Wilson-Rogers,  181  Pa.  80,  37  Atl.  117. 

«  Stainer  v.  Tysen,  3  Hill  (N.  Y.)  279;  Camden  Safe  Deposit  & 
Trust  Co.  v.  Abbott,  44  N.  J.  Law,  257;  Stainback  v.  Bank,  11 
Grat.  (Va.)  269. 

T  Gulick  v.  Grover,  33  N.  J.  Law,  463,  97  Am.  Dec.  728;  St  John  v. 
Redmond,  9  Port.  (Ala.)  428;  Wallace  v.  Bank,  1  Ala.  565. 

«  Mechanics'  Bank  v.  Schaumburg,  38  Mo.  228. 

Where  each  of  several  tenants  in  common  executed  a  separate 
power  authorizing  the  attorney  to  sell  and  convey  the  constituent's 
interest  in  the  land,  and  "to  sell  and  indorse  any  promissory  notes 
that  may  be  taken  and  secured  by  mortgage"  on  the  land,  the  power 
did  not  authorize  the  attorney  to  bind  his  principal  as  indorser,  jointly 
with  the  other  tenants,  of  a  note  taken  payable  jointly  to  alL  Harris 
v.  Johnston,  54  Minn.  177,  55  N.  W.  970.  40  Am.  St.  Rep.  312. 

a  Holladay  v.  Daily,  19  Wall.  (U.  S.)  606,  22  L.  Ed.  187,  per  Field,  J. 
See,  also,  Hemstreet  v.  Burdick,  90  111.  444. 


170  CONSTRUCTION  OP  AUTHORITY.  (Ch.  7 

son,  with  formal  powers  as  well  as  with  informal  powers,  the 
grant  of  authority  must  be  construed  to  include  all  medium 
powers  which  are  necessary  to  the  effective  execution  of  the 
authority  expressly  granted,10  and  evidence  of  usage  is  ad- 
missible for  the  purpose  of  interpreting  the  authority.11 
Thus,  a  power  to  convey  has  frequently  been  held  to  be  im- 
plied in  a  power  to  sell  real  estate,  as  necessarily  incident  to 
its  effectual  execution;12  and  a  power  to  convey  has  been 
held  to  include  by  implication  power  to  convey  with  general 
warranty,  where  a  general  warranty  is  a  common  and  usual 
mode  of  assurance  on  the  sale  of  real  estate.18 

In  questions  of  construction,  precedents  and  even  rules 
are  of  comparatively  little  value,  since  each  case  must  turn 
upon  the  language  of  the  particular  instrument.  One  or  two 
rules,  however,  offer  practical'  guidance  in  the  construction 
of  powers.14  (i)  The  grant  of  authority  is  controlled  by 
the  recitals.  Thus,  where  a  power  recited  that  the  constitu- 
ent was  going  abroad,  and  the  operative  part  gave  author- 
ity in  general  terms,  it  was  held  that  the  authority  was  lim- 
ited to  the  principal's  sojourn  abroad.18  (2)  Where  author- 
ity to  do  particular  acts  is  followed  by  general  words,  the 
general  words  are  restricted  to  what  is  necessary  for  the 
performance  of  the  particular  acts,  and  are  to  be  construed 
as  enlarging  the  authority  granted  only  when  necessary  to 

»o  Howard  v.  Baillie,  2  H.  Bl.  618;  Witherlngton  v.  Herring,  5 
Blng.  442;  LeRoy  v.  Beard,  8  How.  (U.  S.)  451,  12  L.  Ed.  1151;  post, 
p.  174. 

"  Post,  p.  174. 

12  Valentine  v.  Piper,  22  Pick.  (Mass.)  85,  33  Am.  Dec.  715;  Hem- 
street  v.  Burdick,  90  111.  444;  Farnham  v.  Thompson,  34  Minn.  330, 
26  N.  W.  9,  57  Am.  Rep.  59. 

is  Schultz  v.  Griffin,  121  N.  Y.  294,  24  N.  E.  480,  18  Am.  St.  Rep. 
825.  See,  also,  Leroy  v.  Beard,  8  How.  (U.  S.)  451,  12  L.  Ed.  1151; 
Taggart  v.  Stanbery,  2  McLean  (U.  S.)  543,  Fed.  Gas.  No.  13,724:' 
Peters  v.  Farnsworth,  15  Vt.  155,  40  Am.  Dec.  671;  Vanada  v,  Hop- 
kins, 1  J.  J.  Marsh.  (Ky.)  285,  19  Am.  Dec.  92. 

i*  See  Bowstead,  Dig.  Ag.  art  33. 

iBDanby  v.  Coutts,  29  Ch.  D.  500. 


§§  39-41)     .  EXPRESS  AUTHORITY.  171 

effectuate  the  purpose  for  which  the  authority  is  given.18 
Thus,  under  a  power  to  demand  and  receive  all  moneys 
due  and  "to  transact  all  business,"  the  words  "all  business" 
were  construed  to  mean  all  business  necessary  for  the  recov- 
ery of  the  moneys,  and  hence  it  was  held  that  the  power  did 
not  confer  authority  to  indorse  a  bill  of  exchange  received 
by  the  agent  under  the  power.17  And  generally,  where  the 
authority  to  do  particular  acts  is  followed  by  a  broad  grant  of 
authority,  "to  do  all  other  acts  which  the  principal  could  do 
in  person,"  "to  transact  all  business,"  and  like  phrases,  the 
particular  authority  granted  will  be  taken  as  indicating  the 
true  purpose  of  the  agency,  and  the  general  authority  will 
be  construed  as  enlarging  the  particular  authority  only  so 
far  as  necessary  to  accomplish  that  purpose.18  Indeed,  this 
rule  applies  with  much  the  same  force,  if  less  frequently,  to 
cases  where  the  authority  is  conferred  orally.1* 

Same — Parol  Evidence. 

Where  authority  is  conferred  by  written  instrument,  the 
authority  cannot  be  enlarged  or  varied  by  parol  evidence.20 
This  rule  applies,  of  course,  only  when  the  parol  evidence  is 
offered  to  contradict  or  vary  the  terms  of  a  writing  from 
which  the  authority  is  solely  derived.  Parol  evidence  of  a 
subsequent  grant  of  authority,  enlarging  or  varying  the  au- 
thority previously  granted,  is  admissible,  provided  that  the 

i«  Attwood  v.  Munnings,  7  B.  &  C.  278;  Harper  v.  Goodsell,  L.  R. 
5  Q.  B.  422;  Wood  v.  Goodridge,  6  Cush.  (Mass.)  117,  52  Am.  Dec. 
771;  Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150;  Pollock 
V.  Cohen,  32  Ohio  St  514. 

IT  Hay  v.  Goldschmidt  stated  In  Hogg  v.  Snaitb,  1  Taunt.  347. 

i«  Esdaile  v.  La  Nanse,  1  Y.  &  C.  394;  Rossiter  v.  Rossiter,  8 
Wend.  (N.  Y.)  494,  24  Am.  Dec.  62;  Billings  v.  Morrow,  7  Cal.  172,  68 
Am.  Dec.  235. 

i»  Wood  v.  McCain,  7  Ala.  800,  42  Am.  Dec.  612;  Gullck  v.  Grover, 
33  N.  J.  Law,  463,  97  Am.  Dec.  728. 

20  Gardner  v.  Baillie,  6  T.  R.  591;  Claflin  v.  Continental  Jersey 
Works,  85  Ga.  27,  11  S.  B.  721;  Pollock  v.  Cohen,  32  Ohio  St  514: 
Ashley  v.  Bird,  1  Mo.  640,  14  Am.  Dec.  313;  Allis  Y.  Goldsmith,  22 
Minn.  123. 


172  CONSTRUCTION  OP  AUTHORITY.          .  (Ch.  7 

authority  is  not  of  a  kind  that  must  be  conferred  by  writ- 
ing.21 Thus,  the  parol  evidence  rule  excludes  evidence  of 
usage  or  custom,  when  such  evidence  is  offered  to  enlarge  or 
to  vary  the  express  terms  of  a  written  authority.82  Evidence 
of  usage  may,  however,  be  admitted  to  interpret  the  author- 
ity, since  even  a  formal  power  is  to  be  construed  as  confer- 
ring by  implication  powers  reasonably  necessary  for  its  ef- 
fectual execution,  and  hence  as  including  in  such  cases  cus- 
tomary and  usual  powers.28 

Informal  Authority. 

Where  the  authority  is  conferred  by  writing  not  under 
seal,  a  more  liberal  construction  will  generally  obtain.2* 
The  strict  construction  of  powers  under  seal,  however,  does 
not  rest  upon  the  mere  presence  of  the  seal,  but  upon  their 
formal  character,  and  upon  the  fact  that  the  grant  of  au- 
thority is  carefully  guarded;  and  an  equally  strict  construc- 
tion must  obtain,  in  spite  of  the  absence  of  a  seal,  if  the  in- 
strument appears  to  be  drawn  with  exactness  and  precision.20 
Commercial  instruments,  such  as  orders  and  letters  of  in- 
struction, are  generally  construed  with  greater  liberality,  be- 
cause they  are  generally  drawn  in  a  loose  and  inartificial 
manner,  and  leave  much  for  inference  and  implication.26 
A  fortiori  the  same  liberal  construction  ordinarily  prevails 
where  the  grant  of  authority  is  oral.  Nevertheless,  in  every 
case,  the  question  is  one  of  intention,  and  if  the  intention  is 

*»  Hartford  Fire  Ins.  Co.  v.  Wilcox,  57  111.  180;  Williams  v.  Coch- 
ran,  7  Rich.  Law  (S.  C.)  45;  Magill  v.  Stoddard,  70  Wis.  75,  85  N.  W. 
346;  Story,  Ag.  §§  79,  80. 

22  Hogg  v.  Snaith,  1  Taunt.  347;   Delafield  v.  State  of  Illinois,  26 
Wend.  (N.  Y.)  192. 

23  Hartford  Fire  Ins.  Co.  v.  Wilcox,  57  111.  180;   Reese  v.  Medlock, 
27  Tex.  123,  84  Am.  Dec.  611;  Frink  v.  Roe,  70  Oal.  296,  11  Pac.  820; 
Story,  Ag.  §§  76,  77;  ante,  p.  169. 

24  See  Pole  v.  Leask,  28  Beav.  562,  29  L.  J.  Ch.  888;  Bnthwistle  v. 
Dent,  1  Ex.  812;   Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep. 
150. 

«u  See  Kilgour  v.  Finlyson,  1  H.  Bl.  156.  ««  Story,  Ag.  $  75. 


§§  39-41)  EXPRESS  AUTHORITY.  173 

clearly  expressed,  at  least  as  between  principal  and  agent, 
the  authority  must  be  strictly  pursued.21 

Ambiguous  Authority. 

Where  authority  is  conferred  in  such  terms  as  to  be  fairly 
susceptible  of  one  or  more  constructions,  and  one  of  them 
is  in  good  faith  adopted  and  acted  upon  by  the  agent,  it  is 
not  competent  for  the  principal  to  repudiate  the  act  as  un- 
authorized because  the  construction  adopted  was  not  in- 
tended by  him.  The  principal  must  bear  the  consequences 
if  the  departure  from  his  intention  was  due  to  his  failure 
to  give  his  instructions  in  clear  and  unambiguous  terms.28 
Obviously,  this  rule  can  have  little  application  to  formal  pow- 
ers, which  are  subject  to  strict  construction.29 

27  Bertram  v.  Godfrey,  1  Kiiapp,  381;  Wood  v.  McCain,  7  Ala.  800, 
42  Am.  Dec.  612. 

Where  an  agent  authorized  by  letter  to  sell  land  at  a  fixed  price, 
In  case  he  could  sell  Immediately,  wrote  that  he  could  not  sell  at  that 
price,  and  requested  authority  to  sell  for  less,  or  else  to  let  the  matter 
drop,  and  afterwards,  without  further  communication,  sold  for  the 
price  first  fixed,  it  was  held  that  the  sale  was  unauthorized.  Mat- 
thews v.  Sowle,  12  Neb.  398,  11  N.  W.  857. 

28  Ireland  v.  Livingstone,  L.  R.  5  H.  L.  395;    Le  Roy  v.  Beard,  8 
How.  (U.  S.)  451,  468,  12  L.  Ed.  1151;    De  Tastett  v.  Crousillat,  2 
Wash.  C.  C.  132,  Fed.  Gas.  No.  3,828;  Winne  v.  Insurance  Co.,  91  N. 
Y.  185;   Bessent  v.  Harris,  63  N.  C.  542;    Minnesota  Linseed  Oil  Co. 
v.  Montague,  65  Iowa,  67,  21  N.  W.  184;  post,  p.  404. 

29  "They  [formal  powers]  are  not  subject  to  that  liberal  interpreta- 
tion which  is  given  to  less  formal  instruments,  as  letters  of  instruc- 
tion, etc.,  In  commercial  transactions,  which  are  interpreted  most 
strongly  against  the  writer,  especially  where  they  are  susceptible  of 
two  interpretations,  and  the  agent  has  acted  in  good  faith  upon  one 
of  such  interpretations."    Craighead  v.  Peterson,  72  N.  Y.  279,  28 
Am.  Rep.  150.    But  see  Le  Roy  v.  Beard,  8  How.  (U.  S.)  451,  12  L. 
Ed.  1151. 


174  CONSTRUCTION   OP  AUTHORITY.  (Ch.  7 


IMPLIED   AUTHORITY. 

42.  Where  an  agency  is  established  by  implication  from  tie 

adoption  by  the  principal  of  acts  unauthorized,  the 
scope  of  the  authority  in  strictly  limited  to  acts  sim- 
ilar to  those  adopted. 

EXPRESS    AUTHORITY— INCIDENTAL    POWERS    IM- 
PLIED. 

43.  Every  agent  in  the  execution  of  his  express  authority  has 

implied  authority  to  do  whatever  is  reasonably  nec- 
essary to  its  effective  execution,  unless  the  principal 
has  indicated  a  contrary  intention. 

SAME— POWERS  IMPLIED  FROM  USAGE. 

44.  Every  agent  in  the  execution  of  his  express  authority  has 

implied  authority  to  act  in  accordance  with  the  estab- 
lished usages  and  customs  of  the  particular  business 
which  he  is  employed  to  transact,  or  of  the  particular 
agency  in  -which  he  is  employed,  unless  his  principal 
has  indicated  a  contrary  intention. 

It  has  already  been  pointed  out  that  the  appointment  of 
an  agent  may  be  implied  as  well  as  express,  and  that  au- 
thority to  act  as  agent  will  be  implied  whenever  the  conduct 
of  the  principal  is  such  as  to  manifest  an  intention  to  con- 
fer it.1  Most  frequently  an  implied  agency  arises  from  the 
principal's  adoption  of  unauthorized  acts,  such  conduct  read- 
ily giving  rise  to  the  inference  that  he  desires  the  agent  to 
perform  other  acts  of  the  same  kind,  and  thus  being  strong, 
if  not  conclusive,  evidence  of  actual  authority  to  perform 
other  like  acts.  It  follows  that  when  authority  is  conferred 
in  this  manner  by  implication  it  can  be  no  broader  than  the 
inference  warrants,  and  must  be  strictly  limited  to  acts  sim- 
ilar to  those  previously  adopted.2  The  same  evidence  which 
may  thus  establish  an  implied  agency  may  establish  an  agen- 

§§  42-44.     i  Ante,  p.  32.  *  Ante,  p.  33. 


§§  42-44)  INCIDENTAL  POWERS   IMPLIED.  175 

cy  by  estoppel  in  favor  of  one  subsequently  dealing  with  the 
agent,  if  he  was  a  party  to  the  former  course  of  dealing,  and 
dealt  with  the  agent  in  reliance  upon  the  representation  of 
authority  created  by  the  principal's  adoption  of  the  former 
acts.8  Here,  also,  the  agency  by  estoppel  can  be  no  broader 
than  the  representation,  and  must  be  limited  to  acts  similar 
to  those  adopted. 

Incidental  Powers. 

Authority  to  accomplish  a  particular  end  necessarily  in- 
cludes authority  to  employ  reasonable  means  to  its  accom- 
plishment, unless  such  means  be  expressly  excluded.4  As  we 
have  seen,  even  a  formal  power  of  attorney  is  construed  as 
conferring  medium  powers  necessary  for  its  effective  execu- 
tion.5 The  rule  is  necessarily  very  general.  What  is  reason- 
ably necessary  must,  of  course,  depend  upon  the  object 
sought  to  be  accomplished  and  the  circumstances  of  the  par- 
ticular case.  It  is  not  easy,  indeed,  to  draw  a  line  between 
the  powers  which  are  implied  from  usage  and  custom  *  and 
those  which  are  implied  as  necessarily  incident  to  the  effect- 
ive execution  of  the  authority  conferred.  The  general  ap- 
plication of  the  rule  will  be  seen  from  the  illustrations  given. 

Thus,  an  agent  authorized  to  receive  and  sell  certain  goods, 
and  to  pay  himself  a  debt  out  of  the  proceeds,  has  authority 
to  bring  an  action  against  a  person  wrongfully  withholding 
possession.  *  An  agent  authorized  to  enter  into  a  binding 
contract  has  authority  to  sign  a  memorandum  to  satisfy  the 
statute  of  frauds.  8  An  agent  employed  to  find  a  purchaser 
for  property  has  authority  to  describe  it  to  an  intending  pur- 

«  Ante,  p.  36. 

*  Pole  v.  Leask,  28  Beav.  562,  29  L.  J.  Ch.  888;   Dingle  v.  Hare,  7 
C.  B.  (N.  S.)  145;    Sprague  v.  Gillett,  9  Mete.  (Mass.)  91;    Peck  v. 
Harriott,  6  Serg.  &  R.  (Pa.)  146,  9  Am.  Dec.  415;   Williams  v.  Getty, 
31  Pa.  461,  72  Am.  Dec.  757;   Michigan  S.  &  N.  L  R.  Co.  v.  Day,  20 
111.  375.  71  Am.  Dec.  278;   National  Bank  v.  Bank,  50  C.  C.  A.  443; 
112  Fed.  726. 

«  Ante,  p.  170.  *  Curtis  v.  Barclay,  7  D.  &  R.  539. 

•  Tost,  p.  177.  •  Durrell  v.  Evans,  1  H.  &  C.  174. 


176  CONSTRUCTION  OP  AUTHORITY.  (Ch.  7 

chaser  and  to  make  representations  as  to  facts  affecting  its 
value ;  •  but  an  agent  employed  to  find  a  purchaser  and  con- 
tract for  the  sale  of  real  estate  has  not  authority  to  receive 
the  purchase  money.10  An  agent  authorized  to  secure  im- 
mediate possession  of  a  storeroom  may  bind  his  principal  by 
a  contract  to  pay  a  bonus  therefor,  if  it  cannot  be  otherwise 
obtained.11  An  attorney  employed  by  one  of  the  parties  to 
an  arbitration  to  pay  the  amount  awarded  against  him,  and 
directed  to  do  whatever  is  needful  in  the  matter,  has  power 
to  execute  a  release  required  by  the  award.12  An  agent  sent 
to  hurry  forward  goods,  and  instructed  to  see  that  there  is 
no  delay  in  shipping  them,  has  authority  to  bind  his  principal 
by  a  contract  to  pay  wharfage  due  on  the  goods,  in  order 
to  release  them  from  a  claim  of  lien  under  which  they  are 
held. 1S  An  agent  authorized  to  open  a  new  channel  for  the 
purpose  of  turning  the  course  of  a  stream  has  implied  author- 
ity to  erect  a  dam  or  breakwater  across  the  old  channel  to 
expedite  the  work.14  An  agent  employed  to  obtain  subscrip- 
tions to  an  agreement  to  form  a  joint-stock  company  to  con- 
trol certain  lands  has  authority  to  make  representations  as 
to  the  location  and  quality  of  such  lands.18  An  agent  em- 
ployed to  travel  about  the  country  and  sell  goods  has  im- 
plied authority  to  hire  a  horse  to  enable  him  to  get  from 
place  to  place ;  or,  at  least,  in  such  case  an  inference  or  im- 
plication of  authority  arises  sufficient  to  justify  a  finding  of 

•  Mullins  v.  Miller,  22  Ch.  D.  194. 

10  Mynn  v.  Joliffe,  1  M.  &  Rob.  326. 

11  Shackman  v.  Little,  87  Ind.  181. 

12  Dawson  v.  Lawley,  4  Esp.  65. 

is  Robinson  v.  Iron  Co.,  39  Hun  (N.  Y.)  634. 

Where  goods  shipped  to  an  agent,  to  be  by  him  reshipped  and  sold 
In  a  foreign  market,  were  held  under  a  claim  of  general  average 
resulting  from  an  accident  to  the  vessel,  it  was  held  that  he  had  au- 
thority to  execute  a  general  average  bond  in  order  to  secure  posses- 
sion of  the  goods,  and  thus  carry  out  the  object  of  bis  agency. 
Hardee  v.  Hall,  12  Bush  (Ky.)  327. 

i«  Barns  v.  City  of  Hannibal,  71  Mo.  449. 

16  Sandford  v.  Handy,  23  Wend.  (N.  Y.)  260. 


§§  42-44)  POWERS  IMPLIED   FROM   USAGE.  177 

fact  that  such  authority  is  conferred  upon  the  agent.16  In- 
deed, it  is  perhaps  overstating  the  case  in  some  other  of  the 
foregoing  illustrations  to  affirm  that  as  matter  of  law  the 
agent  had  the  authority  attributed  to  him,  the  question 
whether  the  means  employed  was  reasonably  necessary  be- 
ing often  a  mere  question  of  fact,  dependent  upon  the  cir- 
cumstances of  the  particular  case.1* 

Usages  of  Particular  Business. 

The  authority  of  an  agent  is  to  be  construed  in  the  light 
of  the  established  usages  and  customs  of  the  business  in 
which  he  is  employed.  Where  one  person  employs  another 
to  transact  business  for  him,  it  is  reasonable  to  infer  that  he 
intends  the  agent  to  transact  the  business  according  to  the 
recognized  usages  and  customs  of  the  particular  business 
or  of  the  place  in  which  it  is  to  be  transacted;  and  hence, 
in  the  absence  of  any  indication  of  a  contrary  intention, 
authority  to  act  in  accordance  with  any  such  usage  or  cus- 
tom will  be  implied.18  In  order  that  any  particular  usage 
may  be  thus  read  into  the  authority,  it  must  be  established ; 
that  is,  it  must  be  so  general  that  it  is  generally  known,  and 
will  hence  be  presumed  to  be  known  by  the  principal,  al- 
though it  is  not  essential  that  it  be  actually  known  to  him.18 
If  it  is  not  established,  it  must  appear  that  it  was  known  to 

i«  Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  516.  See,  also, 
Bentley  v.  Doggett,  51  Wis.  224,  8  N.  W.  155,  37  Am.  Rep.  827. 

IT  Story,  Ag.  §  110. 

is  Sutton  v.  Tatham,  10  Ad.  &  E.  27;  Pollock  v.  Stables,  12  Q.  B. 
765;  Pelham  v.  Hilder  (1841)  1  Y.  &  C.  3;  Upton  v.  County  Mills,  11 
Gush.  (Mass.)  586,  59  Am.  Dec.  163;  Sumner  v.  Stewart,  69  Pa.  321; 
Kraft  v.  Fancher,  44  Md.  204;  Corbett  v.  Underwood,  83  111.  324,  25 
Am.  Rep.  392;  Plckert  v.  Marston,  68  Wis.  465,  32  N.  W.  550,  60  Am. 
Rep.  876. 

i»  Sutton  v.  Tatham,  10  Ad.  &  E.  27;  Pollock  v.  Stables,  12  Q.  B. 
765;  Guesnard  v.  Railroad  Co.,  76  Ala.  453;  Bailey  v.  Bensley,  87 
111.  556;  Hibbard  v.  Peek,  75  Wis.  619,  44  N.  W.  641;  Milwaukee  & 
W.  Inv.  Co.  v.  Johnston,  35  Neb.  554,  53  N.  W.  475.  As  to  requisites 
of  usage,  see  Clark,  Contr.  482. 
TIFF.P.&  A.— 12 


178  CONSTRUCTION  OF  AUTHORITY.  (Ch.  7 

him.20  The  usage  must  be  legal;  that  is,  it  must  not  be  in 
conflict  with  positive  law.21  It  must  be  reasonable.28  Evi- 
dence of  usage  cannot  be  admitted  to  change  the  intrinsic 
character  of  the  agency,23  and,  of  course,  usage  can  never 
override  the  positive  instructions  of  the  principal.24  Illus- 
trations of  the  part  played  by  usage  and  custom  in  interpret- 
ing the  authority  expressly  conferred  upon  agents  could  be 
multiplied  indefinitely.  For  example,  in  the  absence  of  ex- 
press limitation  of  his  authority,  an  agent  employed  to  sell 
has  implied  authority  to  sell  with  customary  warranty,28 
and  to  sell  on  credit,  if  it  is  customary  in  such  sales  to  sell 
on  credit.26  A  broker  who  is  employed  to  transact  business 
at  a  certain  place  has  implied  authority  to  act  in  accordance 
with  the  reasonable  usages  of  that  place,27  and,  if  he  is  a 
member  of  the  stock  exchange,  has  implied  authority  to 
buy  and  sell,  and  generally  to  govern  himself,  according  to 
the  usages  of  the  stock  exchange.28  Other  illustrations  will 

20  Robinson  v.  Mollett,  L.  R,  7  H.  L.  802;   Allen  v.  Bank,  120  U. 
S.  20,  7  Sup.  Ct  460,  30  L.  Ed.  573;  Byrne  v.  Packing  Co.,  137  Mass. 
313. 

21  Day  v.  Holmes,  103  Mass.  306;  Evans  v.  Wain,  71  Pa.  69. 

22  Robinson  v.  Mollett,  L.  R.  7  H.  L.  802;    Sweeting  v.  Pearce,  7 
C.  B.  (N.  S.)  449;  Whitney  v.  Esson,  99  Mass.  308,  96  Am.  Dec.  762. 

23  Robinson  v.  Mollett,  L.  R.  7  H.  L.  802;    Allen  v.  Bank,  120  U. 
S.  20,  7  Sup.   Ct.  460,  30  L.   Ed.  573   (usage  authorizing  factor  to 
pledge). 

24  Barksdale  v.  Brown,  1  Nott.  &  M.  517;    Hall  v.  Storrs,  7  Wis. 
253. 

2  s  Dingle  v.  Hare,  7  C.  B.  (N.  S.)  145;  Upton  v.  County  Mills,  11 
Gush.  (Mass.)  586,  59  Am.  Dec.  163;  Smith  v.  Tracy,  36  N.  Y.  82; 
Herring  v.  Skaggs,  62  Ala.  180,  34  Am.  Rep.  4;  Pickert  v.  Marston, 
68  Wis.  465,  32  N.  W.  550,  60  Am.  Rep.  876;  post,  p.  207. 

26  Pelham  v.  Hilder,  1  Y.  &  C.  3. 

27  Pollock  v.  Stables,  12  Q.  B.  765;   Cropper  v.  Cook,  L.  R.  3  C.  P. 
199;   Bailey  v.  Bensley,  87  111.  556. 

2«  Young  v.  Cole,  3  Bing.  N.  C.  724;  Coles  v.  Bristow,  L.  R.  4  Ch. 
3;  Nickalls  v.  Merry,  L.  R.  7  H.  L.  530;  Bibb  v.  Allen,  149  U.  S.  481, 
13  Sup.  Ct.  950,  37  L.  Ed.  819;  Skiff  v.  Stoddard,  63  Conn.  198,  26 
Atl.  874,  28  Atl.  104,  21  L.  R.  A.  102. 


§§  42-44)  POWERS  IMPLIED   FROM  USAGE.  179 

be  given  in  discussing  the  scope  of  various  particular  author- 
ities.29 

Usages  of  Particular  Agencies. 

There  exist  various  classes  of  agents,  such  as  factors, 
brokers,  auctioneers,  and  attorneys  at  law,  who  hold  them- 
selves out  as  ready  to  serve  the  public  generally,  and  who 
may  be  termed  professional  agents.  Because  they  are  cus- 
tomarily invested  with  certain  powers,  and  charged  with  cer- 
tain duties,  usages  and  customs  defining  their  powers  have 
grown  up,  and  are  so  well  established  that  the  courts  take 
judicial  notice  of  them.  When  a  person  employs  an  agent 
of  one  of  these  classes  to  transact  business  peculiar  to  his 
profession  or  business,  it  is  to  be  inferred  that  the  principal 
intends  the  employment  to  be  regulated  by  the  usages  and 
customs  pertaining  to  it;  and  hence,  in  the  absence  of  any 
indication  of  a  contrary  intention,  the  usual  and  customary 
powers  of  such  an  agent  will  be  implied.  For  example,  a 
factor  to  whom  goods  are  intrusted  for  sale  has  implied 
authority  to  fix  the  price,  to  sell  on  credit,  but  not  to  pledge 
or  to  barter.80  There  exist  other  classes  of  agents,  such  as 
shipmasters  and  bank  cashiers,  who  do  not  hold  themselves 
out  as  ready  to  serve  the  public  generally,  and  who  serve  ex- 
clusively one  employer,  whose  business  is  nevertheless  con- 
fined to  well-defined  fields  of  agency,  and  who  likewise  are 
customarily  invested  with  certain  powers  and  charged  with 
certain  duties  in  the  course  of  their  employment.  The  pow- 
ers and  duties  of  these  agents  also  are  to  a  greater  or  less 
extent  defined  by  usage  and  custom,  and  in  respect  to  them 
the  same  implication  of  authority  to  act  in  the  usual  and  cus- 
tomary manner  arises.  Illustrations  of  the  implied  powers 
of  these  agents  will  be  found  in  discussing  the  scope  of  par- 
ticular agencies.81 

«  Post,  p.  208.  ••  Post,  p.  222.  »*  Post,  p.  221. 


180  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Gh.  8 


PART    II. 

RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  THIRD  PERSONS. 


CHAPTER  VHE. 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON- 
CONTRACT. 

45.  Liability  on  Contract — Disclosed  Principal. 

46.  Apparent  Authority. 

47.  Estoppel. 

48.  Scope  of  Particular  Agencies. 

49.  Contract  Induced  by  Collusion  of  Other  Party  and  Agent. 

LIABILITY     ON     CONTRACT— DISCLOSED     PRINCIPAL. 

45.  The  principal  is  liable  upon  a  contract  duly  made  by  his 

agent  with  a  third  person— 

(1)  When    the    agent    acts    within   the    scope    of    his    actual 

authority; 

(2)  When    the    contract,    although    unauthorized,    ha*    been 

ratified; 

(3)  When  the  agent  acts  within  the  scope  of  his  apparent 

authority,  unless  the  third  person  has  notice  that  the 
agent  is  exceeding  his  actual  authority. 

SAME—APPARENT   AUTHORITY. 

46.  "Apparent   authority,"  as  the  term  is  used  in   the  fore- 

going section,  includes  authority  to  do  whatever  is 
usual  and  necessary  to  carry  into  effect  the  principal 
power  conferred  upon  the  agent  and  to  transact  the 
business  which  he  is  employed  to  transact;  and  the 
principal  cannot  restrict  his  liability  for  acts  of  his 
agent  within  the  scope  of  his  apparent  authority  by 
limitations  thereon  of  which  the  person  dealing  with 
the  agent  has  not  notice. 


§§  45-47)  LIABILITY   ON   CONTRACT.  183 


SAME— ESTOPPEL. 

47.  The  principal  may  be  estopped  to  deny  that  a  person  is 
his  agent,  or  that  his  agent  has  acted  within  the  scope 
of  his  authority. 

Principal,  Disclosed  or  Undisclosed. 

In  entering  into  a  contract  with  a  third  person  the  agent 
usually  discloses  the  agency,  but  the  principal  is  ordinarily 
liable  whether  he  be  disclosed  or  undisclosed.  Subject  to 
some  qualifications,  the  liability  of  the  principal  upon  the  con- 
tract is  the  same  in  both  cases.  The  liability  of  the  dis- 
closed principal  will,  however,  be  considered  first,  and  the 
liability  of  the  undisclosed  principal  considered  separately.1 

Manner  of  Execution. 

Although  an  agent  has  power  to  bind  his  principal  by  a 
contract  made  on  his  behalf  within  the  scope  of  the  author- 
ity conferred,  the  contract  may  fail  to  bind  him  by  reason  of 
its  form  or  other  circumstances.  Where  the  agent,  acting 
within  his  authority,  makes  a  contract  in  the  name  of  the 
principal,  the  principal,  and  he  alone,  is  bound.2  And  al- 
though the  contract  be  unauthorized,  if  it  be  made  in  the 
name  of  the  principal,  and  he  ratifies  it,  he,  and  he  only,  is 
bound.8  It  does  not  follow,  however,  that  the  principal  is 
not  bound  because  the  contract  is  in  the  name  of  the  agent ; 
for  the  principal  may  be  bound  although  he  be  undisclosed.4 
And  even  if  he  be  disclosed,  and  the  contract  made  in  the 
name  of  the  agent,  the  principal  is  bound,  except  in  the  case 
of  contracts  under  seal  and  negotiable  instruments,  if  such 

§§  45-47.     i  Post,  p.  231  et  seq. 

2  Johnson  v.  Ogilby,  3  P.  Wm.  277;  Owen  v.  Gooch,  2  Esp.  567; 
Exp.  Hartop,  12  Ves.  352;  Robins  v.  Bridge,  3  M.  &  W.  114;  Ma- 
hony  v.  Kekule,  14  C.  B.  390;  Green  v.  Hopke,  18  G.  B.  549;  Klrk- 
patrick  v.  Stainer,  22  Wend.  (N.  Y.)  244;  Judson  v.  Gray,  11  N.  Y. 
408,  411;  Co  veil  v.  Hart,  14  Hun  (N.  Y.)  252;  Bray  v.  Kettell,  1 
Allen  (Mass.)  80;  Whitney  y.  Wyman,  101  U.  S.  392,  26  I*  Ed.  1050. 

»  Ante,  p.  81.  *  Post,  p.  235. 


182  LIABILITY   OF   PRINCIPAL   TO   THIRD   PERSON.  (Ch.  8 

was  the  intention  of  the  parties ; 5  and,  although  the  contract 
is  in  writing,  parol  evidence  is  admissible  to  show  who  was 
the  real  principal,  in  order  to  charge  him,  but  not  to  dis- 
charge the  agent  from  liability.*  In  such  case,  either  the 
principal  or  the  agent  may  be  charged  upon  the  contract. 
On  the  other  hand,  the  agent,  although  authorized  to  bind 
the  principal,  may  contract  in  such  manner  as  to  bind  only 
himself.7  In  short,  the  agent  may  contract  in  such  manner 
as  to  bind  the  principal  only,  to  bind  the  principal  and  him- 
self, to  bind  himself  only,  or  to  bind  neither.  Logically,  it 
would  perhaps  be  in  order  at  the  present  time  to  consider  in 
what  manner  the  agent  must  contract  in  order  to  bind  his 
principal;  but  it  will  be  convenient  to  postpone  the  discus- 
sion, and  to  discuss  this  phase  of  the  liability  of  the  principal 
upon  contracts  made  on  his  behalf  in  connection  with  the 
discussion  of  the  liability  of  the  agent  for  such  contracts 
toward  the  person  with  whom  he  deals.8 

Actual  Authority. 

Every  contract  duly  made  by  an  agent  for  or  on  behalf  of 
his  principal,  pursuant  to  the  authority  actually  conferred  up- 
on him,  is  binding  upon  the  principal.  This  is  an  obvious 
application  of  the  fundamental  doctrine  of  agency,  qui  facit 
per  alium  facit  per  se.  It  is  to  be  borne  in  mind  that  actual 
authority  may  be  express  or  implied,  and  that  even  when 
authority  is  expressly  conferred  it  includes  by  implication 
authority  to  do  what  is  reasonably  necessary  to  its  effective 
execution  8  and  authority  to  act  in  accordance  with  usage 
and  custom.10 

Ratification. 

As  we  have  already  seen,  the  principal  is  bound  by  a  con- 
tract made  without  authority  upon  his  behalf  when  he  has 
ratified  it.11  This  branch  of  the  subject  has  already  been 
sufficiently  discussed.12 

»  Post,  p.  235.  8  Tost,  p.  330  et  seq.  "  Ante,  p.  81. 

«  Post,  p.  233.  •  Ante,  p.  175.  is  Ante,  c.  3. 

i  Post,  p.  355.  10  Ante,  p.  177. 


§§  4:5-47)  LIABILITY   ON   CONTRACT.  183 

Apparent  Authority — Estoppel. 

The  power  of  an  agent  to  render  his  principal  liable  upon 
a  contract,  or  to  bind  him  by  a  representation,  may  be  far 
broader  than  his  actual  authority.  A  person  may  be  estop- 
ped to  deny  that  another  person  is  his  agent;  or,  if  an 
agency  actually  exists,  may  be  estopped  to  deny  that  an  act 
is  within  the  authority  actually  conferred.  The  nature  of  a 
so-called  "agency  by  estoppel"  has  already  been  explained.13 
To  constitute  an  estoppel  there  must  have  been  words  or 
conduct  of  the  principal  amounting  to  a  representation  of 
authority,  and  the  person  asserting  the  estoppel  must  have 
dealt  with  the  agent  in  reliance  upon  the  appearance  of 
authority  thereby  created.  A  frequent  application  of  the  doc- 
trine of  estoppel  to  agency  is  in  cases  where  the  principal  is 
bound  by  the  acts  of  his  agent  in  excess  of  his  actual  author- 
ity, but  within  the  authority  which  it  has  been  represented 
that  he  possesses,  as  where  the  principal  has  acquiesced  in 
his  agent's  unauthorized  acts  occurring  either  in  a  course  of 
dealing  with  the  person  asserting  the  estoppel  or  with  the 
public,  and  the  person  asserting  the  estoppel  has  relied  upon 
the  appearance  of  authority  to  perform  other  acts  of  a  like 
nature  thereby  conferred  upon  the  agent.14  So,  where  the 
principal  places  his  agent  in  such  a  situation  as  to  justify  a 
reasonable  man  in  inferring  that  he  has  authority  to  per- 
form a  particular  act,  the  principal  is  estopped,  as  against 
one  who  has  dealt  with  the  agent  in  reliance  upon  the  ap- 
pearance of  authority  so  created,  to  deny  the  agent's  author- 
ity to  perform  it,  as  where  one  places  an  agent  upon  his 
premises  in  apparent  charge  of  the  business  there  conducted, 
or  in  apparent  charge  of  the  business  which  it  might  reason- 
ably be  inferred  would  be  conducted  on  the  premises.15 

Apparent  Authority — When  Principal  is  Bound  Indepen- 
dently of  Estoppel. 

Independently  of  a  technical  estoppel,  however,  the  princi- 
pal may  be  bound  by  the  acts  of  his  agent  in  excess  of  the  au- 

»•  Ante,  p.  34.  l4  Ante,  p.  36.  "  Ante,  p.  37. 


184  LIABILITY  OF  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  8 

thority  actually  conferred  upon  him.  Indeed,  in  most  cases 
where  the  principal  is  bound  by  acts  in  excess  of  the  actual  au- 
thority the  liability  rests,  not  upon  a  technical  estoppel,  but 
upon  the  doctrine  of  agency,  by  which  the  principal  is  liable 
for  all  the  acts  of  his  agent  which  are  within  the  scope  of 
the  authority  usually  confided  to  an  agent  employed  to  trans- 
act the  business  which  the  agent  is  employed  to  transact, 
notwithstanding  limitations  upon  that  authority  which  are 
not  disclosed  to  those  with  whom  the  agent  deals.19  "Every 
agency  carries  with  it,  or  includes  in  it,  the  authority  to  do 
whatever  is  usual  and  necessary  to  carry  into  effect  the  prin- 
cipal power,  and  the  principal  cannot  restrict  his  liability 
for  acts  of  the  agent  within  the  apparent  scope  of  his  author- 
ity by  private  instructions  not  communicated  to  those  with 
whom  he  deals."  1T 

Same — Illustrations. 

For  example,  the  principal  is  bound  by  a  warranty  given 
by  an  agent  whom  he  has  authorized  to  make  sales  if  the 
warranty  is  a  usual  one,  although  he  has  instructed  the  agent 
not  to  warrant,  provided  the  buyer  was  not  aware  of  this 
limitation,  the  power  to  warrant  in  the  usual  manner  being 

ie  Watteau  v.  Fenwick  [1893]  1  Q.  B.  346.  See,  also,  Whitehead  v. 
Tuckett,  15  East,  400;  Smith  v.  McGuire,  3  H.  &  N.  554;  Edmunds 
v.  Bushell,  1  Q.  B.  97;  Butler  v.  Maples,  9  Wall.  (U.  S.)  766,  19  L. 
Ed.  822;  Gowan  v.  Bush,  22  C.  C.  A.  196,  76  Fed.  349;  Daylight 
Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45;  Putnam  v.  French, 
53  Vt  402,  38  Am.  Rep.  682;  Lobdell  v.  Baker,  1  Mete.  (Mass.)  193, 
35  Am.  Dec.  358;  Byrne  v.  Packing  Co.,  137  Mass.  313;  Rathbun  v. 
Snow,  123  N.  Y.  343,  25  N.  E.  379,  10  L.  R.  A.  355;  Trainer  v. 
Morison,  78  Me.  160,  3  Atl.  185,  57  Am.  Rep.  790;  Law  v.  Stokes,  32 
N.  J.  Law,  249,  90  Am.  Dec.  655;  Williams  v.  Getty,  31  Pa.  461,  72 
Am.  Dec.  757;  Lister  v.  Allen,  31  Md.  543,  100  Am.  Dec.  78;  Wheeler 
v.  McGuire,  86  Ala.  398,  5  South.  190,  2  L.  R.  A.  808;  Fatman  v. 
Leet,  41  Ind.  133;  Baker  v.  Produce  Co.,  113  Mich.  533,  71  N.  W. 
866;  Bentley  v.  Doggett,  51  Wis.  224,  8  N.  W.  155,  37  Am.  Rep. 
827;  Watts  v.  Howard,  70  Minn.  122,  72  N.  W.  840;  Oberne  v. 
Burke,  30  Neb.  581,  46  N.  W.  838. 

IT  Watts  v.  Howard,  70  Minn.  122,  72  N.  W.  840,  per  Mitchell,  J. 


§§  45-47)  LIABILITY   ON   CONTRACT.  185 

within  the  agent's  "apparent"  or  "ostensible"  authority.18 
Again,  if  a  principal  authorizes  his  agent  to  buy  cotton  on 
his  behalf,  instructing  him  in  no  case  to  pay  more  than  a 
certain  price,  the  principal  is  bound  by  a  contract  of  pur- 
chase, although  the  agent  exceeds  his  instructions  in  respect 
to  the  price,  if  the  limitation  upon  his  authority  is  not  dis- 
closed to  the  seller,  since  the  power  to  fix  a  price  is  within 
the  scope  of  the  authority  usually  confided  to  an  agent  em- 
ployed in  that  character.19  So,  where  a  person  who  traveled 
about  selling  his  own  goods  was  authorized  to  sell  the  plain- 
tiff's goods  upon  commission,  and  it  was  a  usual  incident  to 
that  general  authority  to  fix  the  terms  of  sale,  including  the 
time,  place,  and  mode  of  delivery  and  the  price  of  the  goods, 
and  the  time  and  mode  of  payment,  and  the  agent  sold  goods 
on  credit,  which  were  forwarded  by  the  principal  addressed 
to  the  buyer,  maked  C.  O.  D.,  by  express,  it  was  held  that 
the  defendant  expressman,  being  without  notice  of  the 
agent's  want  of  authority,  was  justified  in  delivering  the 
goods  upon  the  agent's  order  without  payment.  "We  have 
a  case,  then,"  said  the  court,  "where  the  agent  was  appar- 
ently clothed  with  the  authority  to  sell  the  plaintiff's  goods, 
without  limitation  as  to  the  quantity,  and  on  commission, 
for  cash  or  on  credit,  as  he  might  think  proper;  and,  this 
being  so,  Moore  must  be  regarded,  in  respect  to  third  per- 
sons, as  the  plaintiff's  general  agent,  whose  authority  would 
not  be  limited  by  instructions  not  brought  to  the  notice  of 
such  third  persons.  As  Moore,  then,  in  respect  to  third  per- 
sons, had  the  power  to  sell  on  credit,  the  authority  to  con- 
trol the  delivery  *  *  *  would  necessarily  come  within 
the  scope  of  his  agency ;  and  we  think  his  order  to  the  de- 
fendant would  justify  a  delivery  of  the  goods  without  pay- 
ment, unless  he  had  notice  of  the  agent's  want  of  authority. 
As  to  him  the  agent's  apparent  authority  was  real  author- 
is  Post,  p.  207. 

i»  Butler  v.  Maples,  9  Wall.  (U.  S.)  766,  19  L.  Ed.  822.    See,  also, 
Nunnelly  v.  Goodwin  (Tenn.  Ch.  App.)  39  S.  W.  855. 


186  LIABILITY  OF  PRINCIPAL   TO   THIRD  PERSON.  (Ch.  8 

ity."  20  So,  where  the  plaintiffs  solicited  the  defendant  to 
buy  logs,  and  he  referred  them  to  C.  as  the  person  who  at- 
tended to  that  business  for  them,  and  in  pursuance  of  this 
direction  the  plaintiffs  sought  C.,  and  took  him  where  the 
logs  were,  and  they  thereupon  agreed  on  the  terms  of  sale, 
one  of  which  was  that  the  logs  were  to  be  scaled  by  the 
sealer  employed  at  the  defendant's  mill  and  paid  for  ac- 
cording to  the  scale,  it  was  held  that  C.  had  authority  to 
bind  the  defendant  by  such  an  agreement  notwithstanding 
any  private  instructions  limiting  C.'s  authority  to  agree  that 
the  measurement  and  price  should  be  so  determined.  "In 
this  state,"  said  the  court,  "the  purchase  and  sale  of  logs 
according  to  a  scale  to  be  made  is  so  general  and  notorious 
that  the  courts  will  take  notice  of  the  fact.  The  manner 
stipulated  *  *  *  was  the  usual  and  ordinary  way,  and 
hence  within  the  apparent  authority  of  an  agent  to  purchase 
logs,  and  the  plaintiffs  are  not  bound  by  any  private  limita- 
tions upon  C.'s  authority  in  that  regard,  not  communicated 
to  them."  ai  So,  where  an  agent  was  employed  to  travel 
about  the  country  and  sell  goods  by  sample,  power  to  hire 
horses  and  carriages  for  the  transportation  of  the  agent  and 
his  samples  being  necessarily  incident  to  the  business  re- 
quired to  be  done,  it  was  held  that  the  principal  was  liable 
to  a  liveryman  who  furnished  such  transportation  to  the 
agent,  although,  unknown  to  the  liveryman,  the  principal 
had  supplied  the  agent  with  money  and  forbidden  him  to 
pledge  his  credit.  "From  the  nature  of  the  business  re- 
quired to  be  done  by  their  agent,"  said  the  court,  "the  de- 
fendants held  out  to  those  who  might  have  occasion  to  deal 
with  him  that  he  had  the  right  to  contract  for  the  use  of 
teams  and  carriages  necessary  and  convenient  for  doing  such 
business,  in  the  name  of  his  principals,  if  he  saw  fit,  in  the 
way  such  service  is  usually  contracted  for."  *a 

20  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45. 
'  21  Watts  v.  Howard,  70  Minn.  122,  72  N.  W.  840. 
22  Bentley  v.  Doggett,  51  Wis.  224,  8  N.  W.  155,  37  Am.  Rep.  827, 


§§  45-47)  LIABILITY   ON   CONTRACT.  187 

Same — Basis  of  Liability. 

The  use  of  the  words  "apparent"  or  "ostensible"  in  this 
connection  is  somewhat  misleading,  for  it  implies  that  the 
binding  effect  upon  the  principal  of  an  act  within  the  scope 
of  the  agent's  apparent  or  ostensible  authority  in  such  cases 
rests  upon  the  doctrine  of  estoppel.  And  the  same  may  be 
said  of  the  frequent  use  in  this  connection  of  the  phrase 
"holding  out,"  as  it  is  used  in  the  passage  last  quoted. 
Estoppel,  indeed,  is  not  infrequently  asserted  to  be  the  basis 
of  the  doctrine  of  agency  under  consideration ; 23  but  the 
explanation,  it  is  submitted,  is  inadequate.  The  basis  of 
an  agency  by  estoppel  must  be  a  representation  of  author- 
ity on  the  part  of  the  principal,  and  reliance  upon  the  au- 
thority represented  to  exist  on  the  part  of  the  third  person. 
Yet  in  the  class  of  cases  now  under  consideration  both  ele- 
ments may  be  lacking. 

Let  it  be  assumed,  for  example,  that  a  traveling  agent 
employed  to  sell,  but  forbidden  to  give  some  usual  warranty, 
sells  with  that  warranty  to  a  buyer  who  knows  nothing  of 
the  agent's  authority  except  what  he  communicates.  The 
warranty,  being  within  the  usual  authority  of  an  agent  em- 
ployed in  that  character,  is  binding,24  but  the  principal  has 
made  no  representation  of  authority.  On  the  contrary,  the 
only  representation  of  authority  is  that  of  the  agent  himself, 
who,  indeed,  by  assuming  to  sell  with  warranty,  does  im- 
pliedly  represent  that  he  is  authorized  to  do  so;  but  this 
representation,  being  unauthorized,  cannot,  for  the  purpose  of 
creating  an  estoppel,  be  attributed  to  the  principal.  In  other 
words,  it  cannot  be  said  that  the  principal  has  authorized 
the  agent  to  hold  himself  out  as  authorized  to  sell,  and  is 
consequently  estopped,  when  the  agent  has  so  held  himself 
out,  to  say  that  he  was  not  authorized  to  sell  with  usual 

2»  Ewart,  Estoppel;    Huffcut,  Ag.  p.  66  et    seq.,  p.  128  et  seq.; 

Johnston  Y.  Investment  Co.,  46  Neb.  480,  64  N.  W.  1100.    Against 

this  view,  see  13  Green  Bag,  50;  15  Harv.  L.  R.  324. 

2*  Post,  p.  207. 


188  LIABILITY   OF   PRINCIPAL  TO   THIRD   PERSON.  (Ch.  8 

warranty,  since  the  case  supposes  that  the  agent  was  not 
authorized  to  hold  himself  out  as  authorized  to  sell  without 
disclosing  this  limitation  upon  his  authority.  It  would  be 
reasoning  in  a  circle  to  say  that  the  principal  is  estopped 
because  the  representation  of  authority  to  warrant  appears 
to  be  within  the  agent's  authority,  since  the  appearance  of 
authority  rests  upon  that  very  representation. 

Moreover,  even  if  the  conduct  of  the  principal  in  permit- 
ting the  agent  to  hold  himself  out  as  authorized  to  sell  could 
properly  be  considered  a  representation  on  the  principal's 
part  of  authority  to  sell  with  usual  warranty,  nevertheless, 
unless  the  buyer  knew  that  the  warranty  given  was  a  usual 
one,  and  therefore  included  by  implication  in  the  repre- 
sentation of  authority  to  sell,  he  could  not  be  said  to  rely 
upon  any  representation  of  authority  to  warrant.  And  the 
case  would  be  the  same  if  the  principal  directly  held  the  agent 
out  as  authorized  to  sell,  as  when  a  seller  should  refer  an  in- 
tending buyer  to  another  as  his  selling  agent.25  In  either 
case,  if  the  buyer's  right  to  hold  the  principal  upon  the  war- 
ranty rested  upon  estoppel,  it  would  be  part  of  the  buyer's 
case  to  show,  not  merely  that  the  warranty  was  a  usual  one, 
but  that  he  knew  that  it  was  such ;  or,  at  least,  his  right  to 
recover  upon  the  warranty  would  be  defeated  if  it  were 
shown  that  he  was  ignorant  that  the  warranty  was  a  usual 
one,  and  consequently  did  not  rely  upon  the  agent's  appar- 
ent authority  to  warrant.  Or  if  it  were  sought  to  charge  a 
bank  upon  a  contract  made  by  its  cashier,  or  an  insurance 
company  upon  a  contract  made  by  its  general  agent,26  such 
contract  being  within  the  customary  powers  of  agents  em- 
ployed in  that  character,  but  in  violation  of  special  instruc- 
tions, the  right  of  the  other  party  to  the  contract  to  recover 
would  depend  upon  whether  he  was  sufficiently  acquainted 

25  See  Watts  v.  Howard,  70  Minn.  122,  72  N.  W.  840;   Trickett  v. 
Tomlinson,  13  C.  B.  (N.  S.)  663. 

26  See  cases  cited  in  note  16,  supra.    As  to  powers  of  bank  cash- 
iers, post,  p.  220.    As  to  powers  of  insurance  agents,  post,  p.  218. 


§§  4:5-47)  LIABILITY   ON   CONTRACT.  189 

with  the  usages  and  customs  of  the  banking  business  or  the 
insurance  business  to  know  that  an  agent  of  that  character 
would  ordinarily  have  authority  to  make  such  a  contract. 
Such,  however,  is  not  the  rule.  The  principal  is  bound  irre- 
spective of  the  other  party's  knowledge  of  the  usual  course 
of  business,  provided  he  has  not  notice  of  any  limitation 
upon  the  usual  authority.  The  apparent  powers  must,  in- 
deed, be  such  as  a  reasonable  man,  conversant  with  business 
usages,  would  be  justified  in  assuming  to  exist,  but  it  is  not 
essential  that  the  party  seeking  to  charge  the  principal 
should  be  acquainted  with  the  usage  on  which  his  right  de- 
pends. 

The  liability  of  the  principal  for  the  acts  of  his  agent  with- 
in the  scope  of  his  "apparent"  authority,  as  the  term  is  here 
used,  must  rest,  therefore,  not  upon  a  technical  estoppel, 
but  upon  a  broader  doctrine  of  agency,  that  a  principal  is 
liable  for  acts  of  his  agent  which  are  within  the  ordinary 
and  usual  scope  of  the  business  he  is  employed  to  transact, 
notwithstanding  undisclosed  limitations  upon  that  apparent 
authority — a  doctrine  which,  as  we  shall  see,  applies  even 
when  the  very  existence  of  the  agency  is  undisclosed.27  It 
is  true  that  in  many  cases  all  the  elements  of  a  technical 
estoppel  may  exist,  but  it  is  by  no  means  necessary  that  they 
do  exist,  to  charge  the  principal,  within  this  doctrine. 

No  doubt  the  development  of  the  doctrine  was  influenced 
by  the  practical  consideration  that  "it  is  more  reason 
that  he  who  puts  a  trust  and  confidence  in  the  deceiver 
should  be  a  loser  than  a  stranger,"  "  or,  as  it  is  more  fre- 
quently put,  that,  "where  one  of  two  innocent  persons  must 
suffer  by  the  act  of  a  third,  he  who  has  enabled  the  other  to 
occasion  the  loss  must  sustain  it":  but  these  general  state- 
ments are  far  from  being  statements  of  any  principle  of  uni- 
versal application.28  One  who  intrusts  the  custody  of  his 

2f  Watteau  v.  Fenwick  [1893]  1  Q.  B.  346;  post,  p.  237. 
28  Hern  v.  Nichols,  1  Salk.  289. 

2»Knox  v.  American  Co.,  148  N.  Y.  441,  42  N.  E.  988,  31  L.  R. 
A.  779,  51  Am.  St.  Rep.  700. 


190  LIABILITY   OF  PRINCIPAL  TO  THIRD  PERSON.  (Gh.  8 

goods  to  another  is  not  ordinarily  bound  by  an  attempted 
sale,  however  great  the  trust  and  confidence  reposed  and 
however  innocent  the  purchaser ;  but,  if  the  property  is  in- 
trusted with  authority  to  sell,  a  sale  with  usual  warranty  or 
usual  credit  is  binding,  although  warranty  and  credit,  un- 
known to  the  buyer,  were  forbidden.80 

Same — General  and  Special  Agent. 

It  must  be  conceded  that  the  rule  that  the  principal  is 
bound  by  the  acts  of  his  agent  within  the  scope  of  his  ap- 
parent or  usual  authority,  notwithstanding  undisclosed  lim- 
itations, is  commonly  said  to  apply  only  to  "general"  agents. 
The  principal  is  bound,  it  is  said,  by  the  acts  of  his  general 
agent,  acting  within  the  scope  of  his  general  authority,  al- 
though in  violation  of  his  private  instructions ; 31  but  the 
authority  of  a  "special"  agent  must  be  strictly  pursued,  and 
if  he  exceeds  his  limited  authority  the  principal  is  not 
bound.32 

Agents  are  said  to  be  divided,  in  respect  to  the  extent 
of  their  authority,  into  "universal,"  "general,"  and  "special" 
agents.  A  universal  agent  has  been  defined  as  one  "ap- 
pointed to  do  all  the  acts  which  his  principal  can  personally 

»o  Post,  pp.  205,  207,  222. 

»i  Fenn  v.  Harrison,  3  T.  R.  757;  Whitehead  Y.  Tuckett,  15  East, 
400;  Butler  v.  Maples,  9  Wall.  (U.  S.)  766,  19  L.  Ed.  822;  Allen  v. 
Ogden,  1  Wash.  C.  C.  (U.  S.)  174,  Fed.  Gas.  No.  233;  Rossiter  v, 
Rossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  62;  Munn  v.  Commission 
Co.,  15  Johns.  (N.  Y.)  44,  8  Am.  Dec.  219;  Lobdell  v.  Baker,  1 
Mete.  (Mass.)  202,  35  Am.  Dec.  358;  Markey  v.  Insurance  Co.,  103 
Mass.  78,  92;  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am. 
Rep.  45;  Williams  v.  Getty,  31  Pa.  461,  72  Am.  Dec.  757;  Adams 
Exp.  Co.  v.  Schlessinger,  75  Pa.  246;  Lister  v.  Allen,  31  Md.  543, 
100  Am.  Dec.  78;  Manning  v.  Gaskarie,  27  Ind.  399;  Cruzan  v. 
Smith,  41  Ind.  298;  Blackwell  v.  Ketcham,  53  Ind.  186;  City  of 
Davenport  v.  Insurance  Co.,  17  Iowa,  276;  Palmer  v.  Cheney,  35 
Iowa,  281;  Rockford  Ins.  Co.  v.  Nelson,  65  111.  415;  Inglish  v.  Ayer, 
79  Mich.  516,  44  N.  W.  942;  Montgomery  Furniture  Co.  v.  Hardaway, 
104  Ala.  100,  16  South.  29. 

32  See  cases  cited  in  last  note. 


§§  45-47)  LIABILITY   ON   CONTRACT.  191 

do,  and  which  he  may  lawfully  delegate  the  power  to  another 
to  do." 33  Such  an  agency,  says  Story,  "may  potential- 
ly exist ;  but  it  must  be  of  the  very  rarest  occurrence."  '* 
This  term  is  seldom  met  with,  and  universal  agents  call  for 
no  discussion. 

A  general  agent  is  usually  defined  as  one  authorized  to 
act  for  his  principal  in  all  matters  concerning  a  particular 
business  or  employment  or  of  a  particular  nature.  A  special 
agent  is  usually  defined  as  one  authorized  to  do  a  particular 
act  or  to  act  in  a  single  transaction.  "The  distinction  be- 
tween the  two  kinds  of  agencies  is  that  the  one  is  created 
by  power  given  to  do  acts  of  a  class,  and  the  other  by  pow- 
er given  to  do  individual  acts  only."  35  Yet  while  this  dis- 
tinction is  commonly  said  to  indicate  the  dividing  line  be- 
tween general  and  special  agents,  there  is  by  no  means  uni- 
versal agreement  in  the  use  of  the  terms.  For  example,  the 
term  "general  agent"  is  sometimes  said  to  apply  to,  or  to 
include,  any  professional  or  customary  agent,  such  as  an  at- 
torpey,  broker,  factor,  or  auctioneer,  although  he  may  be 
employed  only  in  a  single  transaction.36  Under  this  use  of 
the  term  a  broker  employed  in  a  single  transaction  is  a  gen- 
eral agent,  while  if  the  distinction  usually  drawn  is  correct 
he  is  a  special  agent.  Sometimes,  even,  the  difference  is 
made  to  turn  upon  whether  or  not  the  authority,  even 
though  it  be  to  do  a  particular  thing,  is  strictly  limited  as  to 
the  mode  of  doing  it.37  If  the  power  of  an  agent  to  bind 

»»  Story.  Ag.  §21.  «*  Id. 

«e  Butler  v.  Maples,  9  Wall.  (U.  S.)  776,  19  L.  Ed.  822.  See,  also, 
cases  cited  In  uote  31,  supra. 

s«  Paley,  Ag.  (Lloyd's  Ed.)  199,  note;  Evans,  Ag.  102;  Bowstead, 
Dig.  Ag.  art  1.  See  Lobdell  v.  Baker,  1  Mete.  (Mass.)  193,  35  Am. 
Dec.  358;  Bell  v.  Offutt,  10  Bush  (Ky.)  632;  Lister  v.  Allen,  31  Md. 
543,  100  Am.  Dec.  78. 

•  7  Story,  Ag.  §  18. 

"A  special  agent  is  one  employed  for  a  particular  purpose  only. 
He  also  may  have  a  general  authority  to  accomplish  that  purpose,  or 
be  limited  to  do  It  In  a  particular  manner."  Bryant  v.  Moore,  26 
Me.  84,  45  Am.  Dec.  96,  per  Shepley,  J. 


192  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Gh.  8 

his  principal  by  acts  within  the  scope  of  his  apparent  au- 
thority turned  in  reality  upon  whether  his  agency  were  gen- 
eral or  special,  it  is  obvious  that  accurate  definitions  of  the 
terms  would  be  essential,  and,  indeed,  would  have  been 
worked  out  long  ago  by  the  courts.  It  is,  however,  very  gen- 
erally admitted  at  the  present  day  that  the  distinction  is  un- 
satisfactory. 

The  distinction  was  stated  by  Story  to  be  as  follows :  "It 
seems  proper  to  refer  again  to  *  *  *  the  distinction 
commonly  ta*ken  between  the  case  of  a  general  agent  and 
that  of  a  special  agent,  the  former  being  appointed  to  act  in 
his  principal's  affairs  generally,  and  the  latter  to  act  concern- 
ing some  particular  object.  In  the  former  case  the  principal 
will  be  bound  by  the  acts  of  his  agent  within  the  scope  of  the 
general  authority  conferred  on  him,  although  he  violates  by 
those  acts  his  private  instructions  and  directions,  which  are 
given  to  him  by  the  principal,  limiting,  qualifying,  suspend- 
ing, or  prohibiting  the  exercise  of  such  authority  under  par- 
ticular circumstances.  In  the  latter  case,  if  the  agent  exceeds 
the  special  and  limited  authority  conferred  upon  him,  the 
principal  is  not  bound  by  his  acts,  but  they  become  mere 
nullities,  so  far  as  he  is  concerned;  unless,  indeed,  he  has 
held  him  out  as  possessing  a  more  enlarged  authority."  88 

So  far  as  it  relates  to  general  agents,  as  there  defined,  the 
passage  quoted  states  the  rule  with  sufficient  accuracy,  under- 
standing "general  authority"  as  authority  to  act  within  the 
ordinary  and  usual  scope  of  the  business  which  the  agent 
is  authorized  to  transact.39  But,  so  far  as  this  passage 
states  a  different  rule  for  special  agents — that  is,  for  agents 
appointed  "to  act  concerning  some  particular  object" — it  is 
believed  that  it  is  incorrect.  Clearly,  a  broker  or  other  cus- 
tomary agent  is  a  special  agent,  as  there  defined ;  but  a  broker 
employed  in  a  single  transaction  has  power  to  bind  his  prin- 
cipal within  the  scope  of  the  ordinary  authority  of  a  broker 
employed  in  such  a  transaction,  notwithstanding  private  or 

•s  Story,  Ag.  §  126.  «•  Ante,  p.  183. 


§§  45-47)  LIABILITY  ON  CONTRACT.  193 

undisclosed  instructions  limiting  that  authority.4*  And  even 
a  special  agent  who  is  not  a  customary  agent  may  bind  his 
principal  by  acts  within  the  ordinary  and  usual  scope  of  the 
business  confided  to  him,  notwithstanding  undisclosed  limita- 
tions. That  this  is  so,  if  the  instructions  are  intended  to  be 
kept  secret,  and  not  communicated  by  the  agent  to  those 
with  whom  he  may  deal,  is  clear.41  "No  man  is  at  liberty  to 
send  another  into  the  market  to  buy  or  sell  for  him  as  agent, 
with  secret  instructions  as  to  the  manner  in  which  he  shall 
execute  his  agency,  which  are  not  to  be  communicated  to 
those  with  whom  he  is  to  deal ;  and  then,  when  his  agent  has 
deviated  from  these  instructions,  to  say  that  he  was  a  special 
agent,  that  the  instructions  were  limitations  upon  his  author- 
ity ;  and  that  those  with  whom  he  dealt  in  the  matter  of  the 
agency  acted  at  their  peril,  because  they  were  bound  to  in- 
quire, where  inquiry  would  have  been  fruitless,  and  to  ascer- 
tain that  of  which  they  were  not  to  have  knowledge."  4* 

But  it  is  believed  that  the  rule  is  not  confined  to  cases 
where  the  instructions  limiting  the  usual  or  apparent  author- 
ity of  a  special  agent  are  intended  to  be  kept  secret.  "If  a 
man  sends  his  servant  to  market  to  sell  goods,  or  a  horse,  for 
a  certain  price,  and  the  servant  sells  them  for  less,  the  mas- 
ter is  bound  by  it."  48  "Every  agency  carries  with  it,  or 

«o  Post,  p.  224. 

«i  Hatch  v.  Taylor,  10  N.  H.  538;  Towle  y.  Leavitt,  23  N.  H.  860, 
55  Am.  Dec.  195. 

«  Hatch  v.  Taylor,  10  N.  H.  538. 

*»  "If  a  man,  by  his  conduct,  holds  out  another  as  his  agent,  by 
permitting  him  to  act  in  that  character  and  deal  with  the  world  as  a 
general  agent,  he  must  be  taken  to  be  the  general  agent  of  the  per- 
son for  whom  he  so  acts,  and  the  latter  is  bound,  though,  in  a  par- 
ticular instance,  the  agent  may  have  exceeded  his  authority.  It  Is 
so  even  in  the  case  of  a  special  agent;  as,  for  instance,  if  a  man 
sends  his  servant  to  market  to  sell  goods,  or  a  horse,  for  a  certain 
price,  and  the  servant  sells  them  for  less,  the  master  is  bound  by  it 
There  even  the  violation  of  a  particular  authority  does  not  render 
the  sale  null  and  void."  Smith  v.  McGuire,  3  H.  &  N.  554,  per  Pol- 
lock, C.  B. 

TIFF.P.&  A.— 13 


194  LIABILITY   OP  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  8 

includes  in  it,  the  authority  to  do  whatever  is  usual  and  neces- 
sary to  carry  into  effect  the  principal  power,  and  the  princi- 
pal cannot  restrict  his  liability  for  acts  of  his  agent  within  the 
apparent  scope  of  his  authority  by  private  instructions  not 
communicated  to  those  with  whom  he  deals.  These  prin- 
ciples apply  as  well  to  special  as  to  general  agents.  An  agent 
with  authority  to  sell  or  buy  has  authority  to  sell  or  buy  in 
the  usual  manner."  **  It  is  doubtless  true  that  the  usual  and 
necessary  powers  which  are  incidental  to  the  principal  power 
are  ordinarily  fewer  in  the  case  of  an  agent  employed  to  act 
in  a  single  transaction  than  in  the  case  of  an  agent  employed 
to  act  in  all  matters  concerning  a  particular  business.45  But 
upon  principle  the  power  of  the  agent  in  such  cases  to  bind 
his  principal  by  acts  in  excess  of  his  actual  authority  does  not 
turn  upon  whether  the  agency  is  general  or  special,  but  upon 
whether  the  powers  which  he  assumes  to  exercise  are  such 
usual  and  necessary  powers  as  would  be  implied  in  the  ab- 
sence of  any  indication  of  a  contrary  intention  as  incidental 
to  the  principal  power,  provided,  of  course,  that  the  person 
seeking  to  hold  the  principal  had  not  notice  of  the  terms  of 
the  actual  authority. 

Same — Notice  of  Limitations  upon  Apparent  Authority. 

The  burden  of  proof  is  upon  the  person  dealing  with  any 
one  as  an  agent,  through  whom  he  seeks  to  charge  another 
as  principal,  to  show  that  the  agency  did  exist,  and  that  the 
agent  had  the  authority,  real  or  apparent,  which  he  assumed 
to  exercise,  or  otherwise  that  the  alleged  principal  is  estop- 
ped from  disputing  the  agency.  A  person  dealing  with  any 
one  as  an  agent  who  has  not  been  held  out  as  such  deals  at 
his  peril,  and  if  he  does  not  apply  to  the  alleged  principal  to 
ascertain  whether  an  agency  exists,  and  to  what  extent,  he 

««  Watts  v.  Howard,  70  Minn.  122,  72  N.  W.  840. 

"Blackwell  v.  Ketcham,  53  Ind.  184;  Chicago  &  G.  W.  R.  Land 
Co.  v.  Peck,  112  111.  408;  Gilbert  v.  Deshon,  107  N.  Y.  324,  14  N.  E. 
818. 


§§  45-47)  LIABILITY   ON   CONTRACT.  195 

takes  the  risk  of  its  existence  and  of  its  extent.4*  It  is  not 
in  the  power  of  an  agent  to  establish  or  enlarge  his  author- 
ity by  his  own  declarations.47  Nevertheless,  if  an  agency  did 
exist,  the  third  person  can  charge  the  principal  for  any  act 
of  the  agent  within  the  scope  of  his  authority,  although  he 
made  no  inquiry;  and  the  scope  of  the  authority,  as  be- 
tween the  principal  and  a  third  person  who  had  no  notice  of 
unusual  limitations,  will  be  measured  by  the  powers  which 
would  ordinarily  be  implied  and  included  in  such  an  agency.48 
By  failing  to  inquire,  the  third  person  does  not  take  the  risk 
of  unusual  limitations;  it  is  enough  to  protect  him  that  he 
had  not  notice  of  such  limitations,  and  it  is  for  the  principal  to 
show  that  he  had  such  notice.4'  And  this  rule  applies  as 

"  "Pole  v.  Leask,  33  L.  J.  (N.  S.)  Ch.  155,  per  Lord  Cran worth. 
See,  also,  Schimmelpennich  v.  Bayard,  1  Pet.  (U.  S.)  264,  7  L.  Ed. 
138;  Hatch  v.  Taylor,  10  N.  H.  547;  Murdock  v.  Mills,  11  Mete. 
(Mass.)  5;  Lister  v.  Allen,  31  Md.  543,  100  Am.  Dec.  78;  Hurley  v. 
Watson,  68  Mich.  531,  36  N.  W.  726;  Rice  v.  Peninsular  Club,  52 
Mich.  87,  17  N.  W.  708;  Berry  v.  Anderson,  22  Ind,  36;  Davidson  v. 
Porter,  57  111.  300;  Chaff e  v.  Stubbs,  37  La.  Ann.  656;  Dozier  v. 
Freeman,  47  Miss.  647. 

Where  an  agent  was  appointed  by  resolution  expressed  by  words 
In  prsesenti,  but  intended  to  not  take  effect  till  certain  stages  of  the 
business  were  completed,  the  agent  could  not  bind  the  company 
by  holding  himself  out  as  agent  to  one  who  relied  merely  on  his  rep- 
resentations, without  knowledge  of  the  resolution,  Bathbun  v.  Snow, 
123  N.  Y.  343,  25  N.  E.  379,  10  L.  R.  A.  355. 

*»  Post,  p.  256. 

*8  Daylight  Burner  Co.  v.  Odlln,  51  N.  H.  56,  12  Am.  Rep.  45; 
Bentley  v.  Doggett,  51  Wls.  224,  8  N.  W.  155,  37  Am.  Rep.  827;  But- 
ler v.  Maples,  9  Wall.  (U.  S.)  766,  19  L.  Ed.  822. 

4»  Bentley  v.  Doggett,  51  Wis.  224,  8  N.  W.  155,  37  Am.  Rep.  827. 
And  see  cases  cited  in  notes  46  and  48,  supra. 

If  the  principal  relies  upon  a  custom  to  withhold  or  limit  some 
power  which  would  otherwise  be  included  as  necessarily  incidental 
to  the  main  power,  it  is  for  him  to  show  that  the  custom  was  so  uni- 
versal that  the  person  dealing  with  the  agent  must  be  presumed  to 
have  knowledge  of  it.  Bentley  v.  Doggett,  supra;  Roche  v.  Penning- 
ton,  90  Wis.  107,  62  N.  W.  946.  If  such  a  custom  in  fact  existed,  the 


196  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Clj.  8 

well  to  cases  where  the  third  person  has  dealt  with  the  agent 
without  any  direct  holding  out  on  the  part  of  the  principal  as 
to  cases  where  the  principal  has  directly  held  him  out  as  hav- 
ing authority. 

The  rule  that  the  person  dealing  with  an  agent  need  not 
make  inquiry  for,  and  is  not  affected  with  notice  of,  undis- 
closed limitations  upon  the  apparent,  or  usual,  authority,  is 
commonly  stated  as  applying  only  to  general  agents,  and  it 
is  said  that  a  person  dealing  with  a  special  agent  is  bound  to 
make  inquiry  and  is  affected  with  such  notice.50  What  has 
already  been  said  concerning  the  distinction  between  general 
and  special  agents  is  applicable  here.  No  inquiry  need  be 
made  for  secret  instructions  to  a  special  agent  or  for  limita- 
tions upon  his  authority  which  are  not  intended  to  be  dis- 
closed. And  it  seems  that  no  inquiry  need  be  made  for  any 
possible  limitations  upon  the  powers  which  would  otherwise 
necessarily  be  included  and  implied  as  incidents  to  an  agency 
of  the  character  in  question.81  Where  an  agent  is  appointed 
to  do  a  single  act,  however,  the  scope  of  the  apparent  au- 
thority is  in  most  cases  very  narrow,  and  a  person  dealing 
with  him  must  ascertain  the  terms  of  the  authority  at  his 
peril.5* 

apparent  authority  of  the  agent  would  be  an  authority  so  limited.  In 
Baines  v.  Ewing,  L.  R.  1  Ex.  320,  1  H.  &  C.  511,  the  principal  gave 
authority  to  an  insurance  broker  to  underwrite  marine  risks,  the  risk 
not  to  exceed  £100  by  any  one  vessel,  and  the  broker  underwrote  a 
policy  for  £150.  The  assured  was  not  aware  of  the  limitation,  but  it 
was  well  known  in  Liverpool  that  in  almost  all  cases,  if  not  in  all,  a 
limit  was  put  to  the  amount  for  which  the  broker  could  sign.  It  was 
held  that  the  principal  was  not  liable.  "The  utmost  that  can  be 
said,"  said  Bramwell,  B.,  "is  that  the  principal  held  out  the  broker 
as  having  the  authority  which  a  Liverpool  broker  ordinarily  has." 

so  See  cases  cited  note  31,  supra. 

BI  Hatch  v.  Taylor,  10  N.  H.  538;  Towle  v.  Leavitt,  23  N.  H.  360, 
55  Am.  Dec.  195. 

ea  Blackwell  v.  Ketcham,  53  Ind.  184;  Gilbert  v.  Deshon,  107  N. 
Y.  324,  14  N.  E.  318;  Milne  v.  Kleb,  44  N.  J.  Eq.  378,  14  Atl.  646; 
Bohart  v.  Oberne,  36  Kan.  284,  13  Pac.  388. 

Where  a  special  agent  authorized  to  buy  cotton  of  a  designated 


§§  45-47)  LIABILITY   ON   CONTRACT.  197 

On  the  other  hand,  if  the  person  dealing  with  an  agent  has 
notice  that  he  is  exceeding  his  actual  authority,  such  per- 
son cannot  charge  the  principal."  In  cases  resting  upon 
estoppel  this  must  be  so  from  the  very  nature  of  an  estoppel. 
And  although  the  liability  of  the  principal  for  acts  of  his  agent 
within  the  ordinary  and  usual  scope  of  the  business  delegated 
does  not  rest  upon  a  technical  estoppel,  nevertheless  it  is  an 
essential  element  of  the  doctrine  of  agency  on  which  the  lia- 
bility rests  that  no  limitation  upon  the  ordinary  and  usual 
authority  of  such  an  agent  be  disclosed.54  Of  course,  if  the 
third  person  has  been  informed  of  limitations  he  cannot  hold 
the  principal  beyond  the  authority  so  limited.88  Knowl- 
edge of  the  limitations,  however,  is  not  essential ;  it  is  enough 
if  he  have  notice,  actual  or  constructive.88  Actual  notice 
is  communicated  by  knowledge  of  circumstances  sufficient  to 
put  him  as  a  reasonable  man  upon  inquiry,  which  if  pursued 
would  lead  to  knowledge  of  the  limitations.81  Such  notice 

person  at  a  certain  place  bonght  cotton  of  equal  value  and  quality 
of  other  persons  in  a  different  locality,  the  principal  was  not  bound. 
Robinson  Mercantile  Co.  v.  Thompson,  74  Miss.  847,  21  South.  794. 
.  08  In  re  Kern's  Estate,  176  Pa.  373,  35  AtL  231;  Littleton  v.  As- 
sociation, 97  Ga.  172,  25  S.  E.  826;  Park  Hotel  Co.  v.  Bank,  30  C. 
C.  A.  409,  86  Fed.  742  (notice  that  agent  is  contracting  with  himself). 

•«  Ante,  p.  183  et  seq. 

«  Strauss  v.  Francis,  L.  R.  1  Q.  B.  379;  Wood  Mowing  Mach.  Co. 
T.  Crow,  70  Iowa,  340,  30  N.  W.  609. 

ee  Howard  v.  Braithwaite,  1  Ves.  &  B.  202,  209;  Collen  v.  Gardner, 
21  Beav.  540. 

»»  See  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45, 
where  it  was  held  that  marking  the  package  C.  O.  D.  was  not  in  law 
want  of  authority  to  authorize  delivery  without  payment,  and  that 
It  was  properly  left  to  the  jury  whether  it  was  sufficient  to  put  the 
expressman  upon  inquiry. 

Where  husband  and  wife  executed  a  deed,  absolute  in  form,  of 
the  land  of  the  wife,  who  delivered  it  to  the  husband,  to  be  by  him 
delivered  as  an  equitable  mortgage  for  a  certain  amount,  and  he 
delivered  it  in  payment  of  a  larger  sum  he  owed  the  grantee,  who 
was  aware  the  deed  was  to  be  delivered  as  a  security,  he  was  bound 
to  ascertain  the  conditions  of  delivery.  Gilbert  v.  Deshon,  107  N.  Y. 
324,  14  N.  E.  318;  Brown  T.  West,  69  Vt  440,  38  Atl.  87. 


198  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Ch.  8 

would  be  communicated  by  a  previous  course  of  dealing  be- 
tween the  parties  indicating  unusual  limitations."  So,  if  the 
person  dealing  with  an  agent  has  knowledge  that  his  au- 
thority is  conferred  by  a  power  of  attorney  or  other  instru- 
ment, he  will  be  charged  with  knowledge  of  the  conditions 
and  limitations  of  the  instrument.69  And  if  the  act  which 
the  agent  assumes  to  do  is  one  for  which  the  law  requires 
authority  in  writing,  or  under  seal,  or  of  record,  the  person 
dealing  with  the  agent  will  be  charged  constructively  with 
notice  of  the  conditions  and  limitations  of  the  authority.*0 
So  the  assured  is  affected  with  constructive  notice  of  restric- 
tions, contained  in  his  policy,  upon  the  authority  of  the  agent 
to  waive  conditions  of  the  policy,  although  the  assured  has 
not  read  the  policy.61  By  the  law  merchant,  a  signature  "per 
procurationem'*  on  a  bill  of  exchange,  promissory  note,  or 
check  operates  as  constructive  notice  that  the  agent  had  only 
a  limited  authority  to  sign,  and  the  principal  is  bound  only  if 
the  agent  in  signing  was  acting  within  the  actual  limits  of  his 
authority.62  A  restrictive  indorsement  operates  as  construc- 
tive notice ;  "  and  hence,  when  a  bill  or  note  is  indorsed  "for 
collection,"  this  gives  notice  that  the  indorsee  is  merely  agent 
for  collection,  and  has  not  the  legal  title.6* 

*«  Ante,  p.  82. 

»»  Stainback  v.  Read,  11  Grat.  (Va.)  281,  62  Am.  Dec.  648. 

«o  Backman  v.  Charlestown,  42  N.  H.  125;  Peabody  v.  Hoard, 
46  HI.  242:  Lewis  v.  Commissioners,  12  Kan.  186;  Reese  v.  Med- 
lock,  27  Tex.  120,  84  Am.  Dec.  611. 

«i  Quinlan  v.  Insurance  Co.,  133  N.  Y.  356,  31  N.  E.  31,  28  Am. 
St.  Rep.  645;  post,  p.  219. 

62  Stagg  v.  Elliott,  12  C.  B.  N.  S.  373,  381;  Attwood  V.  Munnings, 
7  B.  &  C.  278;  Alexander  v.  McKenzie,  6  C.  B.  766;  In  re  Floyd  Ac- 
ceptances, 7  Wall.  (U.  S.)  666,  19  L,  Ed.  169;  Nixon  v.  Palmer,  8  N. 
Y.  398;  Pope  v.  Bank,  57  N.  Y.  126. 

The  letters  "p.  p.  a.,"  added  to  the  signature,  are  evidence  of  no- 
tice that  the  agent  professes  to  act  per  power  of  attorney.  Mt  Mor- 
ris Bank  v.  Gorham,  169  Mass.  519,  48  N  E.  341. 

«s  Ancher  v.  Bank,  2  Doug.  63;  Treuttel  v.  Barendon,  8  Taunt.  100. 

•«  Lloyd  v.  Sigourney,  5  Bing.  525;   Commercial  Nat  Bank  v.  Arm- 


§§  45-47)  LIABILITY  ON   CONTRACT.  199 

Same — Condition  of  Exercise  of  Power  Peculiarly  within 

Knowledge  of  Agent — Estoppel. 

Where,  by  a  power  of  attorney,  the  agent  is  authorized  to 
exercise  the  authority  upon  a  certain  condition,  or  in  a  cer- 
tain event,  as  to  incur  indebtedness  not  exceeding  at  any  one 
time  a  certain  amount,  it  has  been  held  that  the  person  deal- 
ing with  the  agent  must,  at  his  peril,  ascertain  the  existence 
of  the  fact  upon  which  the  right  to  exercise  the  power  de- 
pends, and  cannot  rely  upon  the  representation  of  th^  agent 
that  the  fact  exists.*8  A  different  rule,  however,  obtains  in 
many  jurisdictions,  where  it  is  held  that  when  the  authority 
of  the  agent  depends  upon  some  fact  outside  the  terms  of  the 
power,  which  from  its  nature  rests  peculiarly  within  his 
knowledge,  the  principal  is  bound  by  the  representation  of 
the  agent,  although  false,  as  to  the  existence  of  such  fact.  In 
accordance  with  this  rule,  it  was  held  in  a  leading  case  that 
where,  by  the  terms  of  a  power  of  attorney,  the  authority  of 
the  agent  to  issue  negotiable  paper  was  expressly  limited  (as 
it  would,  indeed,  have  been  limited  by  implication)  to  the  busi- 
ness of  the  principal,  and  the  agent  exercised  the  power  to 
raise  money  for  his  own  benefit,  but  ostensibly  for  the  benefit 
of  his  principal,  the  principal  was  equitably  estopped  to  deny 
that  the  authority  had  been  pursued." 

strong,  148  U.  8.  50,  13  Sup.  Ct  533,  37  L.  Ed.  303;  Manufacturers' 
Nat.  Bank  v.  Bank,  148  Mass.  553,  20  N.  E.  193,  2  L.  R.  A.  689,  12 
Am.  St.  Rep.  598;  Freeman's  Nat.  Bank  v.  Tube- Works,  151  Mass. 
413,  24  N.  E.  779,  8  L.  R.  A.  42,  21  Am.  St.  Rep.  461;  National 
Butchers'  &  Drovers'  Bank  v.  Hubbell,  117  N.  Y.  384,  22  N.  E.  1031, 
7  L.  R.  A.  852,  15  Am.  St.  Rep.  515;  Merchants'  Nat.  Bank  v.  Han- 
son, 33  Minn.  40,  21  N.  W.  849,  53  Am.  Rep.  5. 

•o  Mussey  v.  Beecher,  3  Gush.  (Mass.)  511.  See,  also,  Lowell  Five 
Cent  Sav.  Bank  v.  Inhabitants  of  Winchester,  8  Allen  (Mass.)  109; 
Craycraft  v.  Selvage,  10  Bush.  696.  But  see  Montaignac  v.  Shitta, 
15  App.  Cas.  357. 

••North  River  Bank  v.  Aymar,  3  Hill  (N.  T.)  262.  See,  also, 
Farmers'  &  Mechanics'  Bank  v.  Bank,  16  N.  Y.  125,  69  Am.  Dec. 
678;  New  York  &  N.  H.  R.  Co.  v.  Schuyler,  34  N.  Y.  30,  maintaining 
the  authority  of  North  River  Bank  v.  Aymar,  supra. 


200  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Ch.  8 

The  principle  of  this  decision  is  of  wide  application,67 
and  the  failure  of  many  courts  to  recognize  it  or  to  apply 
it  in  all  cases  has  resulted  in  much  conflict  of  authority,  as 
is  illustrated  in  cases  involving  bills  of  lading.  It  is  not 
within  the  usual  powers  of  the  master  of  a  ship  or  of  the 
shipping  agent  of  a  carrier  to  issue  bills  of  lading  for  goods 
not  received,  and  the  extent  of  his  authority,  real  and  ap- 
parent, is  therefore  to  issue  bills  only  for  goods  actually 
received.  It  follows  that  the  consignee  or  indorsee  for  value 
of  a  bill  of  lading  acts  at  his  own  risk  as  respects  the  ex- 
istence of  the  fact  upon  which  alone  the  agent  has  authority 
to  issue  the  bill,  and  that,  when  the  agent  has  fraudulent- 
ly and  collusively  or  by  mistake  issued  a  bill  without  re- 
ceiving the  goods,  the  principal  is  not  liable  upon  the  con- 
tract, unless  he  is  liable  by  virtue  of  an  equitable  estop- 
pel. The  English  rule,68  which  is  followed  by  many  courts 
of  this  country,69  denies  his  liability,  but  his  liability  is  main- 
tained by  courts  which  give  full  application  to  the  principle 
in  question.70  While  the  earlier  rule  is  a  plausible  appli- 

«T  Where  the  proper  officer  of  a  bank  fraudulently  certifies  a 
check,  the  bank  is  bound  as  against  a  bona  fide  holder.  Farmers' 
&  Mechanics'  Bank  v.  Butchers'  &  Drovers'  Bank,  14  N.  Y.  623;  Id., 
16  N.  Y.  125,  69  Am.  Dec.  678;  Meads  v.  Bank,  25  N.  Y.  143,  82  Am. 
Dec.  331;  Merchants'  Nat.  Bank  v.  Bank,  10  Wall.  (U.  S.)  604,  646, 
650,  19  L.  Ed.  1008. 

«»  Grant  v.  Norway,  10  C.  B.  665;  Coleman  v.  Riches,  16  0.  B. 
104  [wharfinger  giving  receipt  for  goods  not  received];  Cox  v.  Bruce, 
18  Q.  B.  D.  147. 

«»  Pollard  v.  Vinton,  105  U.  S.  7,  26  L.  Ed.  998;  Priedlander  v. 
Railway  Co.,  130  U.  S.  416,  9  Sup.  Ct.  570,  32  L.  Ed.  991;  Sears  v. 
Wingate,  3  Allen  (Mass.)  103;  Baltimore  &  O.  R.  Co.  v.  WUkens, 
44  Md.  11,  22  Am.  Rep.  26;  Dean  v.  King,  22  Ohio  St.  118;  Williams 
v.  Railroad  Co.,  93  N.  C.  42,  53  Am.  Rep.  450;  Louisiana  Nat.  Bank 
v.  Laveille,  52  Mo.  380;  National  Bank  of  Commerce  v.  Railroad  Co., 
44  Minn.  224,  46  N.  W.  342,  560,  9  L,  R.  A.  263,  20  Am.  St.  Rep.  566. 

TO  Armour  v.  Railroad  Co.,  65  N.  Y.  Ill,  22  Am.  Rep.  603;  Bank 
of  Batavia  v.  Railroad  Co.,  106  N.  Y.  195,  12  N.  E.  433,  60  Am.  Rep. 
440;  Brooke  v.  Railroad  Co.,  108  Pa.  529,  1  Atl.  206,  56  Am.  Rep. 
235;  St  Louis  &  I.  M.  R.  Co.  v.  Lamed,  103  111.  293;  Sioux  City 


§§  45-47)  LIABILITY   ON   CONTRACT.  201 

cation  of  the  doctrine  of  agency,  there  seems  much  reason 
for  applying  here,  and  in  analogous  cases,  the  principle  of 
convenience,  which  is  the  basis  of  the  equitable  estoppel 
recognized  by  those  courts  which  maintain  the  liability  of 
the  principal,  that  "whenever  one  of  two  innocent  parties 
must  suffer  by  the  act  of  a  third  he  who  has  enabled  the 
third  person  to  occasion  the  loss  must  sustain  it." "  In 
jurisdictions  where  this  view  prevails  the  principal  is  estopped 
from  denying  the  receipt  of  the  goods  to  the  prejudice  of  a 
third  person  who  has  dealt  with  the  agent  or  acted  on  his 
representation  in  good  faith,  in  the  ordinary  course  of  busi- 
ness. 

Same — Public  Agent. 

The  rule  that  a  principal  is  bound  by  the  acts  of  his  agent, 
acting  within  the  scope  of  his  general  authority,  although  he 
acts  in  violation  of  special  instructions,  does  not  apply  to 
public  agents.78  This  rests  partly  upon  the  ground  that  the 
powers  and  duties  of  public  agents  are  defined  and  limited 
by  public  law,  of  which  persons  dealing  with  such  agents  are 
charged  with  notice ; 78  and  also  upon  the  ground  of  public 
policy,  "for  the  reason  that  it  is  better  that  an  individual 
should  occasionally  suffer  from  the  mistakes  of  public  of- 
ficers or  agents  than  to  adopt  a  rule  which,  through  im- 
proper combinations  or  collusion,  might  be  turned  to  the 
detriment  and  injury  of  the  public." T*  "The  government 

&  P.  R.  Co.  v.  Bank,  10  Neb.  556,  7  N.  W.  811,  35  Am.  Rep.  488; 
Wichita  Sav.  Bank  v.  Railroad  Co.,  20  Kan.  519;  Fletcher  v.  Ele- 
vator Co.,  12  S.  D.  643,  82  N.  W.  184. 

T1  For  an  able  presentation  of  the  arguments  pro  and  con,  see  the 
opinion  of  Mitchell,  J.,  in  National  Bank  of  Commerce  v.  Railroad 
Co.,  44  Minn.  224,  46  N.  W.  342,  560,  9  L.  R.  A.  263,  20  Am.  St  Rep. 
666.  Post,  p.  294. 

72  Lee  v.  Munroe,  7  Cranch  (U.  S.)  366,  3  L.  Ed.  373;  Whiteside 
v.  United  States,  93  TJ.  S.  247,  23  L.  Ed.  882;  Delafleld  T.  State  of 
Illinois,  26  Wend.  (N.  Y.)  192. 

TS  Mayor  of  Baltimore  v.  Eschbach,  18  Md.  276,  282;  New  York 
&  C.  S.  S.  Co.  v.  Harbison  (D.  C.)  16  Fed.  681:  Id.  (C.  C.)  691. 

T*  Whiteside  v.  United  States,  93  U.  S.  247,  23  L.  Ed.  882. 


202  LIABILITY  OF  PRINCIPAL  TO   THIRD  PERSON.  (Oh.  8 

or  public  authority  is  not  bound  in  such  a  case,  unless  it  mani- 
festly appears  that  the  agent  was  acting  within  the  scope  of 
his  authority,  or  that  he  had  been  held  out  as  having  author- 
ity to  do  the  act,  or  was  employed  in  his  capacity  as  a  public 
agent  to  do  the  act  or  make  the  declaration  for  the  govern- 
ment." 7B 

Same — Contracts  Beyond  Scope  of  Authority. 

It  follows,  of  course,  from  what  has  been  said,  that  if  an  act 
is  not  within  the  actual  authority,  nor  within  the  apparent 
authority,  of  an  agent,  the  principal  is  not  bound  by  it,  un- 
less he  subsequently  ratifies  it.76  If,  for  example,  the  prin- 
cipal authorizes  a  stockbroker  to  sell  stock,  he  is  not  bound 
by  a  sale  on  credit,  because  he  has  not  actually  authorized 
it,  and  it  is  not  usual  or  necessary,  and  hence  not  within  the 
apparent  authority  of  the  broker,  to  sell  stock  on  credit.77 
So,  if  the  principal  intrusts  goods  to  a  factor  to  sell,  he  is 
not  bound  by  a  pledge,  since  a  pledge  is  not  within  the  usual 
authority  of  a  factor,  and  there  is  no  actual  authority.78  An 
exception  to  the  general  rule  exists  by  the  law  merchant  in 
case  of  negotiable  instruments.  An  agent,  like  any  other 
person,  can  transfer  title  to  money  or  to  a  negotiable  in- 
strument transferable  by  delivery,  in  his  possession,  to  a 
bona  fide  purchaser  for  value  without  notice,  notwithstand- 
ing absence  of  authority  to  transfer  it.79  If,  however,  the  in- 
strument is  transferable  by  indorsement,  his  power  to  trans- 
fer title  is  no  greater  than  his  actual  or  apparent  authority.80 

TB  Whiteside  v.  United  States,  93  U.  S.  247,  23  L.  Ed.  882. 

76  Wiltshire  T.  Sims,  1  Camp.  258;    Re  Cunningham,  36  Ch.  Div. 
532;  Wheeler  v.  Sleigh  Co.  (C.  C.)  39  Fed.  347;  Crane  v.  Gruenewald, 
120  N.  Y,  274,  24  N.  E.  456,  17  Am.  St.  Rep.  643;   Hurley  v.  Watson, 
68  Mich.  531,  36  N.  W.  726;  Deering  &  Co.  v.  Kelso,  74  Minn.  41,  76 
N.  W.  792,  73  Am.  St.  Rep.  324;    Oberne  v.  Burke,  30  Neb.  581,  46 
N.  W.  838;   Blackmer  v.  Mining  Co.,  187  111.  32,  58  N.  E.  289. 

77  Wiltshire  v.  Sims,  1  Camp.  258. 

78  Post,  p.  317.    As  to  changes  in  the  law  made  by  the  factors' 
acts,  post,  pp.  315,  317. 

79  Post,  pp.  315,  316. 

•o  See  Robinson  v.  Yarrow,  7  Taunt.  455;  post,  p.  316. 


§  48)  SCOPE   OF   PARTICULAR  AGENCIES.  203 


SCOPE  OF  PARTICULAR  AGENCIES. 

48.  The  foregoing  rules  apply  to  all  classes  of  private  agents, 
and  trill  be  illustrated  by  considering  the  scope  of  the 
authority  of  the  following* 

(1)  Agents  to  sell. 

(2)  Agents  to  purchase* 

(3)  Agents  to  collect. 

(4)  Agents  to  execute  commercial  paper. 

(5)  Agents  to  manage  business. 

(6)  Bank  cashiers. 

(7)  Insurance  agents. 

(8)  Shipmasters. 

(9)  Factors. 

(10)  Brokers. 

(11)  Auctioneers. 

(12)  Attorneys  at  law. 

In  General. 

It  has  already  been  explained  that  every  agent,  in  the  exe- 
cution of  his  express  authority,  unless  the  principal  has  in- 
dicated a  contrary  intention,  has  implied,  authority  to  do 
what  is  reasonably  necessary  to  effect  what  he  is  directed  to 
do,1  and  furthermore  has  implied  authority  to  act  in  ac- 
cordance with  the  usages  and  customs  of  the  business  which 
he  is  employed  to  transact.'  It  is  the  express  authority,  as 
thus  supplemented  by  what  is  to  be  implied,  that  consti- 
tutes the  actual  authority  of  the  agent,  by  which  the  rights 
and  duties  of  the  principal  and  the  agent  inter  se  are  meas- 
ured. And  it  is  the  express  authority,  supplemented  by  those 
necessary  and  usual  powers,  which,  in  the  absence  of  notice 
that  those  powers  have  been  denied  or  limited,  constitutes 
the  apparent  authority  of  the  agent  in  dealing  with  third 
persons.  The  scope  of  any  particular  agency  must  depend, 
therefore,  both  as  between  the  principal  and  the  agent  (where 
the  powers  otherwise  implied  have  not  been  limited),  and  as 
between  the  principal  and  third  persons  who  have  not  notice 

{  48.     i  Ante,  pp.  174,  175.  •  Ante,  pp.  174,  177. 


204  LIABILITY   OF   PRINCIPAL   TO   THIRD   PERSON.  (Ch.  8 

that  these  powers  have  been  limited,  not  merely  upon  the 
nature  of  the  acts  directed  and  their  necessary  incidents,  but 
upon  the  usages  and  customs  which  prevail  in  reference  to 
the  performance  of  such  acts,  either  generally  or  when  per- 
formed by  an  agent  of  the  class  employed. 

As  has  been  pointed  out,3  there  are  certain  classes  of 
agents,  such  as  factors,  brokers,  auctioneers,  and  attorneys 
at  law,  who  serve  the  public  generally,  and  who,  by  virtue 
of  the  usages  of  their  profession,  are  invested,  in  the  absence 
of  any  indication  of  a  contrary  intention,  with  well-defined 
.powers.  And  there  are  other  classes  of  agents,  such  as 
shipmasters  and  bank  cashiers,  and  in  some  cases  insurance 
agents,  who  serve  only  one  employer,  but  whose  powers, 
within  the  field  of  their  agency,  are  in  the  same  manner 
largely  defined  by  usage.4  But,  while  usage  plays  a  larger 
part  in  defining  the  powers  of  agents  of  these  two  classes, 
the  same  principles  are  applicable  in  determining  the  scope 
of  their  authority  as  in  the  case  of  other  agents. 

It  is  beyond  the  purpose  of  this  book  to  discuss  in  detail 
the  scope  of  particular  authorities  or  particular  agencies, 
but  a  brief  discussion  of  some  of  them  is  desirable  for  further 
illustration.  It  is  to  be  borne  in  mind  throughout  this  dis- 
cussion that  the  express  authority,  as  supplemented  by  the 
powers  which  are  prima  facie  to  be  implied,  is  also  the  ap- 
parent authority  of  the  agent  in  respect  to  third  persons  who 
have  not  notice  that  the  powers  otherwise  to  be  implied  have 
been  limited. 

Agent  to  Sell. 

(a)  Personalty.  Authority  to  sell  personal  property  is  in 
most  instances  conferred  verbally  or  by  informal  writing, 
and  may,  of  course,  be  inferred  from  the  conduct  of  the  prin- 
cipal. No  authority  to  sell  is  to  be  inferred  from  the  mere 
possession  of  the  goods.8  Intrusting  another  with  the  pos- 

»  Ante,  p.  179.  4  Ante,  p.  179. 

»  Cole  v.  Northwestern  Bank,  L.  R.  10  C.  P.  354;  Johnson  v.  Credit 
Lyonnais,  2  C.  P.  D.  224,  affirmed  3  C.  P.  D.  32;  Saltus  v.  Everett, 


§  48)  SCOPE   OF  PARTICULAR  AGENCIES.  205 

session,  indeed,  if  accompanied  by  other  circumstances  in- 
vesting the  possessor  with  an  appearance  of  ownership,  may 
estop  the  owner  from  denying  the  ownership  of  the  person 
whom  he  has  trusted  as  against  a  purchaser  from  him  who 
has  relied  upon  the  apparent  ownership— as  where  the  owner 
has  invested  the  person  intrusted  with  possession  with  the 
indicia,  or  documentary  evidence,  of  title.*  And,  perhaps,  if 
the  owner  sends  his  goods  to  a  place  where  it  is  the  ordinary 
business  of  the  person  to  whom  they  are  confided  to  sell  as 
agent,  as  to  an  auction  room,  the  owner  may  be  estopped, 
as  against  a  purchaser  who  has  relied  upon  the  appearance 
of  authority  to  sell,  to  deny  that  authority.7  But  it  is  not 
enough  to  raise  an  estoppel  that  the  person  to  whom  the 
goods  are  intrusted  is  a  dealer  in  that  class  of  goods,8  al- 
though that  fact  might  have  weight  in  connection  with  other 

20  Wend.  (N.  Y.)  267,  32  Am.  Dec.  541;  Covlll  v.  Hill,  4  Denlo  (N.  Y.) 
323. 

«  Pickering  v.  Busk,  15  Bast,  38  (permitting  transfer  in  books  of 
wharfinger  from  name  of  seller  to  that  of  broker);  Dyer  v.  Pearson, 
3  B.  &  C.  38;  Cole  v.  Northwestern  Bank,  L.  R.  10  C.  P.  354;  Calais 
Steamboat  Co.  v.  Van  Pelt,  2  Black,  372,  17  L.  Ed.  282  (permitting 
vessel  to  be  enrolled  in  name  of  agent);  Nixon  v.  Brown,  57  N.  H. 
84  (permitting  agent  to  retain  bill  of  sale  taken  in  his  own  name); 
McNeil  v.  Bank,  46  N.  Y.  325,  7  Am.  Rep.  341  (delivering  to  broker 
certificate  of  stock  indorsed  with  blank  assignment  and  power  of  at- 
torney purporting  to  be  executed  for  consideration);  Walker  v.  Rail- 
way Co.,  47  Mich.  338,  11  N.  W.  187. 

7  Pickering  v.  Busk,  15  East,  38,  per  Lord  Ellenborough.  See,  also. 
Cole  v.  Northwestern  Bank,  L.  R.  10  C.  P.  354,  364,  365;  Towle  v. 
Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195. 

Plaintiff,  a  dealer  in  pianos,  intrusted  a  piano  to  an  agent,  also  a 
piano  dealer,  to  leave  at  defendant's  house,  intending  himself  to 
thereafter  go  to  the  house  to  try  to  sell  the  piano  to  defendant.  The 
agent,  however,  sold  the  piano  to  defendant,  and  received  and  appro- 
priated the  money.  The  agent  had  previously,  as  plaintiff  knew, 
been  endeavoring  to  sell  defendant  a  piano.  Held,  that  the  sale  was 
within  the  agent's  apparent  authority.  Heath  v.  Stoddard,  91  Me. 
499,  40  AtL  547. 

s  Biggs  v.  Evans  [1894]  1  Q.  B.  88;  Levi  v.  Booth,  58  Md.  305, 
42  Am.  Rep.  332;  Oilman  Linseed  Oil  Co.  v.  Norton,  C3  Iowa,  434, 


206  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Oh.  8 

circumstances  indicating  that  the  owner  had  conferred  actual 
authority  upon  him.9 

An  agent  authorized  to  sell  has  implied  authority  to  fix 
the  price,  provided  it  is  not  unreasonable,  and  to  agree  upon 
the  terms  of  sale,  provided  they  are  usual.10  Authority  to 
sell  confers  only  authority  to  sell  for  money,  and  hence 
does  not  confer  authority  to  sell  on  credit,  unless  there  is 

56  N.  W.  663,  48  Am.  St.  Rep.  400.  See  Wilkinson  v.  King,  2  Camp. 
335. 

Plaintiff  intrusted  an  article  to  a  dealer  in  such  articles,  who 
also,  as  a  known  part  of  his  business,  sold  such  articles  for  others  in 
his  own  name,  having  them  in  his  possession.  He  was  forbidden  to 
sell  without  first  obtaining  authority.  Held,  that  plaintiff  could  re- 
cover the  article  from  an  innocent  purchaser.  "The  true  test,"  said 
Wills,  J.,  "is,  I  take  it,  whether  the  authority  given  in  fact  is  of 
such  a  nature  as  to  cover  a  right  to  deal  with  the  article  at  all.  If 
It  does,  and  the  dealing  effected  is  of  the  same  nature  as  the  dealing 
contemplated  by  the  authority,  and  the  agent  carries  on  a  business 
in  which  he  ordinarily  effects  for  other  people  such  a  disposition  as 
he  does  effect,  what  he  has  done  is  within  the  general  authority  con- 
ferred, and  any  limitations  imposed  as  to  the  terms  on  which,  or 
manner  in  which,  he  is  to  sell  are  matters  which  may  give  a  right  of 
action  by  the  principal,  but  cannot  affect  the  person  who  contracts 
with  the  agent  It  is  within  the  scope  of  the  authority  that  the 
agent  should  sell  the  goods  on  some  terms,  and  it  is  not  usual  in  the 
trade  to  inquire  into  the  limits  or  conditions  of  an  authority  of  that 
kind;  and  therefore  the  principal  is  supposed,  as  respects  other  peo- 
ple, to  have  clothed  the  agent  with  the  usual  authority.  The  foun- 
dation, however,  of  the  whole  thing  is  that  the  agent  should  be  au- 
thorized to  enter  into  some  such  transaction.  If  the  principal  has 
entrusted  the  goods  to  the  agent  for  some  other  purpose,  the  agent 
is  acting  outside  his  authority  in  selling  them  at  all;  and  the  prin- 
cipal, whose  goods  have  been  disposed  of  without  any  authority  at 
all  so  to  do,  is  entitled  to  recover  them  in  spite  of  the  disposition." 
Biggs  v.  Evans,  supra. 

»  Smith  v.  Clews,  105  N.  Y.  283.  11  N.  E.  632,  59  Am.  Rep.  502. 

10  Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682;  Daylight  Bur- 
ner Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45;  Flanders  v.  Putney, 
58  N.  H.  358;  United  States  School  Furniture  Co.  v.  Board  (Ky.) 
88  S.  W.  864. 


§  48)  SCOPE   OP  PARTICULAR  AGENCIES.  207 

usage  to  that  effect,11  as  in  the  case  of  a  factor,"  or  to  accept 
paper  in  payment,18  or  to  exchange  or  barter,14  or  to  pledge 
or  mortgage.15  Authority  to  sell  is  not  to  be  construed  as 
authority  to  sell  at  auction.16  The  agent  has  implied  author- 
ity to  warrant  the  goods,  if  in  the  sale  of  such  goods  it  is 
usual  to  give  a  warranty,17  but  not  otherwise ; 18  and  he  may 
not  give  an  unusual  warranty,19  or  warrant  if  he  belongs 

11  State  of  Illinois  v.  Delafield,  8  Paige  (N.  Y.)  527;  Burks  v.  Hub- 
bard,  69  Ala.  379;   Payne  v.  Potter,  9  Iowa,  549;    Graul  v.  Strutzel, 
53  Iowa,  715,  6  N.  W.  119,  36  Am.  Rep.  250.     See,  also,  Wiltshire  v. 
Sims,  1  Camp.  258;   Pelham  v.  Hilder,  1  Y.  &  Coll.  3.    Cf.  Daylight 
Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45. 

12  Post,  p.  222. 

i«  Harlan  Y.  Ely,  68  Cal.  522,  9  Pac.  947. 

i*  Guerreiro  v.  Peile,  3  B.  &  Aid.  616  (factor);  Taylor  &  Farley 
Organ  Co.  v.  Starkey,  59  N.  H.  142;  Trudo  v.  Anderson,  10  Mich. 
357,  81  Am.  Dec.  795. 

"Voss  v.  Robertson,  46  Ala.  483;  Wheeler  &  Wilson  Mfg.  Co.  v. 
Glvan,  65  Mo.  89;  Switzer  v.  Wilvers,  24  Kan.  384,  36  Am.  Rep.  259; 
post,  p.  223. 

i«  Towle  v.  Leavitt,  23  N.  H.  3GO,  55  Am.  Dec.  195. 

A  power  of  attorney  authorizing  a  public  sale  does  not  authorize  a 
private  sale.  The  G.  H.  Montague,  4  Blatchf.  461,  Fed.  Cas.  No. 
6,377. 

IT  Dingle  v.  Hare,  7  C.  B.  (N.  S.)  145;  Nelson  v.  Cowing,  6  Hill 
(N.  Y.)  336;  Ahem  v.  Goodspeed,  72  N.  Y.  108;  Randall  T.  Kehlor. 
60  Me.  37,  11  Am.  Rep.  169;  Reese  v.  Bates,  94  Va.  321,  26  S.  E.  860; 
Dayton  v.  Hooglund,  39  Ohio  St.  671;  Talmage  v.  Bierhause,  103  Ind. 
270,  2  N.  E,  716;  Pickert  v.  Marston,  68  Wis.  465,  32  N.  W.  550,  60 
Am.  Rep.  876;  Westurn  v.  Page,  94  Wis.  251,  68  N.  W.  1003;  Mc- 
Cormick  v.  Kelly,  28  Minn.  135,  9  N.  W.  675;  Case  Threshing  Mach. 
Co.  v.  McKinnon,  82  Minn.  75,  84  N.  W.  646. 

is  Some  of  the  cases,  however,  declare  the  rule  without  qualifica- 
tion. Schuchardt  v.  Aliens,  1  Wall.  (TJ.  S.)  359, 17  L.  Ed.  642.  "Until 
the  contrary  is  made  to  appear,  It  will  be  presumed  that  a  warranty 
Is  not  an  unusual  incident  to  a  sale  by  an  agent  for  a  dealer  in  a 
commodity  or  article,  where  the  thing  sold  Is  not  present  and  subject 
to  inspection."  Talmage  v.  Bierhause,  103  Ind.  270,  2  N.  E.  716.  Cf. 
Pickert  v.  Marston,  68  Wis.  465,  32  N.  W.  550,  60  Am.  Rep.  876. 

i»  Upton  v.  Mills,  11  Cush.  (Mass.)  583,  59  Am.  Dec.  163;  Smith 
Y.  Tracy,  36  N.  Y.  79;  Angersinger  v.  McNaughton,  114  N.'  Y.  535. 


208  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Ch.  8 

to  a  class  of  agents,  as  auctioneers,  not  usually  so  author- 
ized.20 If  the  sale  is  one  usually  attended  with  warranty, 
the  principal  will  be  bound  although  the  agent  was  forbidden 
to  warrant,  unless  the  buyer  had  notice  of  the  restriction ; 21 
a  warranty  in  such  case  being  within  the  agent's  apparent 
authority.  The  cases  affirming  the  power  to  warrant  are  for 
the  most  part  cases  of  so-called  general  agents,  and  it  has 
sometimes  been  questioned  whether  a  special  agent  can  bind 
his  principal  even  by  a  usual  warranty,  but  upon  principle 
the  same  rule  applies  to  special  agents.22 

An  agent  who  is  intrusted  with  the  possession  of  goods 
which  he  is  authorized  to  sell  has  implied  authority  to  re- 
ceive payment.28  So  a  clerk  employed  to  sell  over  the 

21  N.  E.  1022,  11  Am.  St.  Rep.  087;  Herring  v.  Skaggs,  62  Ala.  180, 
84  Am.  Rep.  4;  Id.,  73  Ala.  446;  Palmer  v.  Hatch,  46  Mo.  585. 

20  Payne  v.  Leconfield,  51  N.  J.  Q.  B.  642;   Dodd  v.  Farlow,  11 
Allen  (Mass.)  426,  87  Am.  Dec.  726. 

21  Howard  v.  Sheward,  L.  R.  2  C.  P.  148;   Boothby  v.  Scales,  27 
Wis.  636;    Murray  v.  Brooks,  41  Iowa,  45;    Flatt  v.  Osborne,  33 
Minn.  98,  22  N.  W.  440;    Stewart  v.  Cowles,  67  Minn.  184,  69  N.  W. 
695. 

Otherwise  if  buyer  has  notice.  Wood  Mowing  Mach.  Co.  v.  Crow, 
70  Iowa,  340,  30  N.  W.  609;  Furneaux  v.  Esterly,  36  Kan.  539,  13 
Pac.  824. 

22  See  Nelson  v.  Cowing,  6  Hill  (N.  T.)  336;   Tice  v.  Gallup,  2  Hun 
(N.  Y.)  446;  Randall  v.  Kehlor,  60  Me.  37,  11  Am.  Rep.  169;  Deming 
V.  Chase,  48  Vt.  382. 

The  servant  of  a  horse  dealer  authorized  to  sell  has  implied  au- 
thority to  warrant,  a  warranty  on  the  part  of  horse  dealers  being 
usual.  Howard  v.  Sheward,  L.  R.  2  C.  P.  148. 

The  servant  of  a  person  not  a  horse  dealer  when  authorized  to  sell 
privately,  has  not  such  implied  authority.  Brady  v.  Todd,  9  C.  B. 
(N.  S.)  592. 

The  servant  of  a  person  not  a  horse  dealer,  if  authorized  to  sell 
at  a  fair,  has  such  implied  authority;  a  warranty  by  the  seller 
at  a  fair,  where  stranger  meets  stranger,  being  in  the  usual  course 
of  business.  Brooks  v.  Hassell,  49  L.  T.  569;  Alexander  T.  Gibson, 
2  Camp.  555. 

23  Butler  v.  Dorman,  68  Mo.  298,  30  Am.  Rep.  795;  Meyer  v.  Stone, 
46  Ark.  210,  55  Am.  Rep.  577. 

As  to  distinction  between  factor  and  broker,  post,  pp.  222,  224. 


§  4:8)  SCOPE   OF  PARTICULAR  AGENCIES.  209 

counter  has  ordinarily  implied  authority  to  receive  payment 
at  the  time  of  sale,  but  not  afterwards.24  On  the  other 
hand,  authority  to  sell,  if  the  agent  is  not  in  possession, 
does  not  ordinarily  carry  with  it  the  power  to  receive  pay- 
ment.25 A  fortiori  a  traveling  agent  employed  merely  to 
solicit  orders  has  not  such  power.2'  If  it  is  within  the 
apparent  authority  of  an  agent  to  receive  payment,  the 
buyer  is,  of  course,  not  affected  by  limitations  thereon  of 
which  he  has  not  notice.27  When,  in  such  a  case,  the  buyer 
receives  from  the  seller  a  bill  embodying  a  notification  that 
payment  must  be  made  directly  to  the  principal,  it  has  been 
held  that  the  buyer,  although  he  fails  to  read  the  notification, 
is  charged  with  constructive  notice ; 28  but  it  seems  that  the 
question  is  properly  one  of  fact,  and  depends  upon  whether 
the  buyer,  under  the  circumstances,  failed  to  use  reasonable 
care  in  not  discovering  the  notification.29  After  a  sale  has 

*«  Kay*  v.  Brett,  5  Ex.  269;  Hirshfleld  v.  Waldron,  54  Mich.  649, 
20  N.  W.  628;  Law  v.  Stokes,  32  N.  J.  Law,  252,  90  Am.  Dec.  655. 

25  Higgins  v.  Moore,  34  N.  Y.  417;  Law  v.  Stokes,  32  N.  J.  Law, 
252,  90  Am.  Dec.  655;  Seiple  v.  Irwin,  30  Pa.  513;  Crosby  v.  Hill, 
39  Ohio  St  100;  Clark  v.  Smith,  88  HI.  298;  Butler  v.  Dorman,  68 
Mo.  298,  30  Am.  Rep.  795;  Brown  v.  Lally,  79  Minn.  38,  81  N.  W. 
538;  Kane  v.  Barstow,  42  Kan.  465,  22  Pac.  588,  16  Am.  St  Rep. 
490;  Simon  v.  Johnson,  101  Ala.  368,  13  South.  491. 

Where  it  was  customary  to  pay  traveling  salesmen,  and  the  con- 
tract made  by  the  salesman  provided  for  payment  to  him,  payment 
held  good.  Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682.  See, 
also,  Trainer  v.  Morison,  78  Me.  160,  3  Atl.  185,  57  Am.  Rep.  790. 

2«  Kornemann  v.  Monaghan,  24  Mich.  36;  McKindly  v.  Dunham, 
55  Wis.  515,  13  N.  W.  485,  42  Am.  Rep.  740;  Janney  v.  Boyd,  30 
Minn.  319,  15  N.  W.  308;  Chambers  v.  Short,  79  Mo.  205  (canvassing 
agent  for  book);  Crawford  v.  Whittaker,  42  W.  Va.  430,  26  S.  B.  516. 

27  Putnam  v.  French,  53  Vt  402,  38  Am.  Rep.  682. 

28  McKindly  v.  Dunham,  55  Wis.  515,  13  N.  W.  485,  42  Am.  Rep. 
740.     See,  also,  Law  v.  Stokes,  32  N.  J.  Law,  249,  90  Am.  Dec.  655. 

2»  Putnam  v.  French,  53  Vt  402,  38  Am.  Rep.  682;  Luckie  v. 
Johnston,  89  Ga.  321,  15  S.  E.  459.  See,  also,  Trainer  v.  Morison, 
78  Me.  160,  3  Atl.  185,  57  Am.  Rep.  790;  Kinsman  v.  Kersliaw,  119 
Mass.  140. 

TIFF.P.&  A.— 14 


210  LIABILITY  OF  PRINCIPAL  TO   THIRD  PERSON.  (Oh.  8 

been  made  the  agent  has  no  power  to  rescind  it.80  Of 
course,  authority  to  sell  does  not  confer  power  to  transfer  in 
payment  of  the  agent's  own  debt.31 

(b)  Realty.  Authority  to  sell  implies  power  to  convey,82 
and  authority  to  execute  a  deed  must  necessarily  be  con- 
ferred by  power  under  seal.33  Authority  to  sell  land  is 
therefore  subject  to  the  rule  of  strict  construction  applicable 
to  formal  instruments,  in  the  discussion  of  which  the  con- 
struction of  powers  to  sell  real  estate  has  been  already  some- 
what illustrated.84  As  we  have  seen,  however,  a  convey- 
ance executed  by  an  agent  authorized  only  by  parol  may 
take  effect  as  a  contract  to  convey.88  An  agent  authorized 
merely  to  enter  into  a  contract  of  sale,  but  not  to  convey,  has 
no  implied  authority  to  receive  payment,8"  except  such  sum 
as  may  be  payable  upon  execution  of  the  contract.  An 
agent  authorized  to  convey  has  implied  authority  to  receive 
any  part  of  the  purchase  money  which  is  payable  at  the 
time,87  but  not  deferred  payments.88  It  seems  that  there  is 
no  implied  authority  to  sell  except  for  cash,89  although  to 
give  a  reasonable  credit,  securing  deferred  payments  by  pur- 

30  Nelson  v.  Albridge,  2  Starkie,  438;  Diversy  v.  Kellogg,  44  111. 
114,  92  Am.  Dec.  154;  Fletcher  v.  Nelson,  6  N.  D.  94,  69  N.  W.  53. 
See,  also,  Stilwell  v.  Insurance  Co.,  72  N.  Y.  385. 

si  Stewart  v.  Woodward,  50  Vt.  78,  28  Am.  Rep.  488;  Thompson  v. 
Barnum,  49  Iowa,  392.  See,  also,  Dowden  v.  Cryder,  55  N.  J.  Law, 
329,  26  Atl.  941. 

a2  Ante,  p.  170.  34  Ante,  p.  1G8. 

33  Ante,  p.  20.  ««  Ante,  p.  22. 

«6  Munn  v.  Joliffe,  1  M.  &  R.  326  (Of.  Ireland  v.  Thompson,  4  C.  B. 
149);  Mann  v.  Robinson,  19  W.  Va.  49,  42  Am.  Rep.  771;  Alexander 
v.  Jones,  64  Iowa,  207,  19  N.  W.  913. 

si  Peck.  v.  Harriott,  6  Serg.  &  R.  146,  9  Am.  Dec.  415;  Johnson 
T.  McGruder,  15  Mo.  365;  Carson  v.  Smith,  5  Minn.  78  (Gil.  58),  77 
Am.  Dec.  539;  Dyer  v.  Duffy,  39  W.  Va.  148,  19  S.  E.  540,  24  L.  R. 
A.  339. 

«8  Johnson  v.  Craig,  21  Ark.  533. 

8»  Dyer  v.  Duffy,  39  W.  Va.  148.  19  S.  E.  540,  24  L.  R.  A.  339; 
Henderson  v.  Beard,  51  Ark.  483,  11  S.  W.  766  (not  to  sell  on  credit 
without  retaining  lien). 


§  48)  SCOPE   OF  PARTICULAR  AGENCIES.  211 

chase  money  mortgage,  might  be  implied  if  a  usage  to  that 
effect  were  shown,40  and  would  be  conferred  by  a  grant  of 
authority  to  sell  "on  such  terms  as  shall  seem  meet." 41 
Since  authority  to  convey  must  be  conferred  by  written  in- 
strument, the  apparent  authority  of  such  an  agent  is  neces- 
sarily small. 

Agent  to  Purchase* 

Like  an  agent  to  sell,  an  agent  to  buy  personal  property 
has  implied  authority  to  fix  the  price,  provided  the  price  is 
reasonable,  and  to  agree  upon  the  terms  of  purchase,  pro- 
vided they  are  usual.42  If  he  is  not  supplied  with  funds,  he 
has  by  implication  authority  to  buy  on  credit ;  4*  but  if  he  is 
supplied  with  funds,  such  implication  does  not  arise,  unless 
the  custom  of  the  trade  is  to  buy  on  credit.44  Neither  may 
he  execute  negotiable  paper  in  payment,  unless  the  purpose 
of  the  agency  cannot  otherwise  be  accomplished.45  But, 
if  the  agency  is  such  that  a  purchase  on  credit  is  usual,  the 
principal  is  bound  notwithstanding  undisclosed  limitations 
upon  that  authority.40  If  authorized  to  buy  on  credit,  he 

«o  Silverman  v.  Bullock,  98  111.  1L 
«*i  Carson  v.  Smith,  5  Minn.  78  (Gil.  58),  77  Am.  Dec.  539. 

«  Owen  v.  Brockschmidt,  54  Mo.  285;  Wishard  v.  McXeill,  85 
Iowa,  474,  52  N.  W.  474. 

4s  Sprague  v.  Gillett,  9  Mete.  (Mass.)  91;  Spear  &  Tierjen  Supply 
Co.  v.  Van  Riper  (D.  C.)  103  Fed.  689.  Cf.  Taft  v.  Baker,  100 
Mass.  68. 

4*  Jaques  v.  Todd,  3  Wend.  (N.  T.)  83;  Boston  Iron  Co.  T.  Hale,  8 
N.  H.  363;  Temple  v.  Pomroy,  4  Gray  (Mass.)  128;  Wheeler  v.  Mc- 
Guire,  86  Ala.  398,  5  South.  190,  2  L.  R.  A.  808;  Komorowski  T. 
Krumdick,  56  Wis.  23,  13  N.  W.  881. 

4»  Taber  v.  Cannon,  8  Mete.  (Mass.)  456;  Webber  v.  Williams  Col- 
lege, 23  Pick.  (Mass.)  302;  Temple  v.  Pomroy,  4  Gray  (Mass.)  128; 
Morris  v.  Bowen,  52  N.  EL  416.  See,  also,  Oberne  Y.  Burke,  30  Neb. 
581,  46  N.  W.  839. 

«6  Watteau  v.  Fenwick  [1893]  1  Q.  B.  346;  Wheeler  v.  McGuire,  86 
Ala.  398,  5  South.  190,  2  L.  R.  A,  808;  Hubbard  v.  Tenbrook,  124 
Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823,  10  Am.  St.  Rep.  585;  Liddell 
v.  Sahline,  55  Ark.  627,  17  S.  W.  705. 


212  LIABILITY  OP  PRINCIPAL,  TO  THIRD  PERSON.  (Ch.  8 

may  make  the  necessary  representations  as  to  the  solvency 
of  the  buyer.47  He  can  have  no  implied  authority  to  buy 
goods  of  a  different  kind,48  or  of  greater  amount,48  or  for 
a  higher  price,80  or  from  persons  with  whom  he  is  not 
authorized  to  deal.81  If,  however,  he  has  been  employed 
in  a  capacity  in  which  an  agent  so  employed  would  usually 
have  power  to  make  the  purchase  in  question,  he  can  bind 
his  principal  within  the  scope  of  such  apparent  or  usual  au- 
thority." 
Agent  to  Collect. 

Authority  to  receive  payment  will,  of  course,  be  implied 
whenever  it  is  a  necessary  and  usual  incident  to  the  business 
delegated,  and  may  be  implied  from  a  course  of  dealing  be- 
tween the  parties  or  other  circumstances.53  The  mere  fact 
that  an  agent  is  intrusted  with  a  note  payable  to  his  principal 
raises  no  implication  of  authority  to  collect  it,  nor  is  the 
mere  possession  ground  to  raise  an  estoppel.54  Neither  is 
authority  to  collect  money  payable  under  a  contract  to  be  im- 

47  Hunter  v.  Machine  Co.,  20  Barb.  (N.  Y.)  493. 

*8  Hopkins  v.  Blane,  1  Call  (Va.)  361;  Davies  v.  Lyon,  36  Minn. 
427,  31  N.  W.  688. 

4»  Olyphaut  v.  McNair,  41  Barb.  (N.  Y.)  446. 

BO  See  Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec.  96. 

»i  Peckham  v.  Lyon,  4  McLean  (U.  S.)  45,  Fed.  Cas.  No.  10,899; 
Eckart  v.  Roehm,  43  Minn.  27,  45  N.  W.  443. 

62  Butler  v.  Maples,  9  Wall.  (U.  S.)  76G,  19  L.  Ed.  822;    Hill  v. 
Miller,  76  N.  Y.  32.     And  see  Shrimpton  &  Son  v.  Brice,  102  Ala.  655, 
15  South.  452,  and  cases  cited,  note  46. 

63  Quinn  v.  Dresbach,  75  Cal.  159,  16  Pac.  762,  7  Am.  St.  Rep.  138; 
Luckie  v.  Johnston,  89  Ga.  321,  15  S.  E.  459. 

The  circumstances  may  be  such  as  to  estop  the  creditor  to  deny 
the  authority.  Howe  Mach.  Co.  v.  Ballwegg,  89  111.  315;  Quinn  v. 
Dresbach,  supra. 

6*  Doubleday  v.  Kress,  50  N.  Y.  410,  10  Am.  Rep.  502;  Wardrop 
v.  Dunlop,  1  Hun  (N.  Y.)  325;  Id.,  59  N.  Y.  634. 

The  fact  that  a  bill  presented  by  an  alleged  agent  was  made  out 
In  the  handwriting  of  the  seller,  and  upon  his  billhead,  is  not  evi- 
dence of  authority  to  collect.  Hirshfield  Y.  Waldron,  54  Mich.  649, 
20  N.  W.  628. 


§  48)  SCOPE   OF  PARTICULAR  AGENCIES.  213 

plied  from  the  fact  that  the  agent  has  negotiated  it."  An 
agent  who  has  negotiated  a  loan  and  who  is  permitted  to 
retain  possession  of  the  note  or  other  securities,  as  a  bond 
and  mortgage,  has,  however,  implied  authority  to  collect  the 
interest  and  the  principal  when  they  fall  due;  and  payment 
to  the  agent  under  such  circumstances  will  bind  the  creditor 
notwithstanding  that  the  agent  has  not  actual  authority  to 
collect,  unless  the  debtor  has  notice  of  the  limitation  upon 
the  apparent  authority.86  The  debtor  must  satisfy  himself 
at  his  peril  that  the  agent  has  possession,  for  the  implica- 
tion of  authority  ceases  whenever  the  securities  are  with- 
drawn from  his  possession.87 

•»  Ante,  p.  209.  See,  also,  Thompson  v.  Elliott,  73  111.  221;  Tew 
T.  Labiche,  4  La.  Ann.  526. 

66  Williams  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  325;   Hatfleld  v.  Reyn- 
olds, 34  Barb.  (N.  Y.)  612;  Halnes  v.  Tohlmann,  25  N.  J.  Eq.  179. 

67  Williams  v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  325;    Smith  v.  Kldd, 
68  N.  Y.  130,  23  Am.  Rep.  157;    Brewster  v.  Carnes,  103  N.  Y.  556, 
9  X.  E.  323;    Gullford  T.  Stacer,  53  Ga.  618;   Stiger  v.  Bent,  111  111. 
328;   Tappan  v.  Morseman,  18  Iowa,  499;   Security  Co.  v.  Graybeal, 
85  Iowa,  543,  52  N.  W.  497,  39  Am.  St.  Rep.  311;   Whelan  v.  Reilly. 
61  Mo.  565;   Trull  v.  Hammond,  71  Minn.  172,  73  N.  W.  642;   Budd 
T.  Broen,  75  Minn.  316,  77  N.  W.  979;   Thomas  v.  Swanke,  75  Minn. 
326,  77  N.  W.  981;    Schenk  v.  Dexter,  77  Minn.  15,  79  N.  W.  526. 

Of  course  actual  authority  may  be  shown,  although  there  is  not 
possession.  General  Convention  of  Congregational  Ministers  v.  Tor- 
kelson,  73  Minn.  401,  76  N.  W.  215;  Hare  v.  Bailey,  73  Minn.  400, 
76  N.  W.  213;  Dexter  v.  Berge,  76  Minn.  216,  78  N.  W.  1111;  Spring- 
field Sav.  Bank  v.  Kjaer,  82  Minn.  180,  84  N.  W.  752;  Shane  v. 
Palmer,  43  Kan.  481,  23  Pac.  594. 

It  seems  that  the  debtor  is  bound  by  payment  to  an  agent  who 
made  the  loan  and  is  in  possession  of  the  securities,  not  by  reason 
of  an  estoppel,  but  because  authority  to  receive  payment  is  a  usual 
incident  of  an  agent  employed  in  that  character;  and  hence  that 
it  is  not  necessary  that  the  person  making  payment  see  the  securi- 
ties, or  even  know  that  they  are  in  possession,  provided  they  in 
fact  are  in  possession.  Hatfield  v.  Reynolds,  34  Barb.  (N.  Y.)  614. 
And  see  dissenting  opinion  of  Potter,  J.,  in  Crane  v.  Gruenewald, 
120  N.  Y.  274,  24  N.  E.  456,  17  Am.  St  Rep.  643.  In  the  latter  case, 
however,  the  rule  is  by  the  court  made  to  rest  upon  the  ground  of 
estoppel. 


214  LIABILITY  OF  PRINCIPAL  TO   THIRD   PERSON.  (Ch.  8 

Authority  to  collect  means  to  receive  payment  in  legal 
currency ;  that  is,  in  legal  tender  or  what  is  by  common  con- 
sent considered  and  tendered  as  money  and  passes  as  such 
at  par.68  An  agent  employed  to  collect  has  not  implied 
authority  to  receive  payment  in  merchandise,89  or  by  bill 
or  note,60  or  even  by  check.61  If  authorized  to  receive  paper 
in  lieu  of  cash,  he  has  no  implied  authority  to  indorse.62  He 
may  receive  part  payment  on  account  of  the  debt,88  but  has 
no  implied  authority  to  discharge  it  for  less  than  the  whole 
amount,  or  to  compromise,64  or  to  extend  the  time  of  pay- 
ment.65 He  has  no  implied  authority  to  receive  payment 
before  the  obligation  is  due,66  nor  to  collect  the  principal  by 
reason  of  authority  to  collect  interest.67  Authority  to  collect 
implies  authority  to  take  all  necessary  and  usual  means 
therefor,  and  hence  to  bring  suit  and  employ  counsel.68 

es  Ward  v.  Smith,  7  Wall.  (U.  S.)  447,  19  L.  Ed.  207;  Hurley  v. 
Watson,  68  Mich.  531,  36  N.  W.  726;  Robinson  v.  Anderson,  106 
Iiid.  152,  6  N.  E.  12. 

BO  Pitkin  v.  Harris,  69  Mich.  133,  37  N.  W.  61;  Mudgett  v.  Day, 
12  Cal.  139. 

eo  Sykes  v.  Giles,  5  M.  &  W.  645;  Langdon  v.  Potter,  13  Mass.  319; 
Robinson  v.  Anderson,  106  Ind.  152,  6  N.  E.  12;  Drain  v.  Doggett, 
41  Iowa,  682;  Jackson  v.  Insurance  Co.,  79  Minn.  43,  81  N.  W.  545, 
82  N.  W.  366;  Scully  v.  Dodge,  40  Kan.  395,  19  Pac.  807. 

«i  Bridges  v.  Garrett,  L.  R.  5  C.  P.  451;  Broughton  v.  Silloway, 
114  Mass.  71,  19  Am.  Rep.  312. 

es  Hogg  v.  Snaith,  1  Taunt.  347;  Robinson  v.  Bank,  86  N.  Y. 
404;  Graham  v.  Institution,  46  Mo.  186;  Jackson  v.  Bank,  92  Tenn. 
154,  20  S.  W.  820,  18  L.  R.  A.  663,  36  Am.  St.  Rep.  81.  Of.  Na- 
tional Bank  of  the  Republic  v.  Bank,  50  C.  C.  A.  443,  112  Fed.  726. 

es  Williams  r.  Walker,  2  Sandf.  Ch.  (N.  Y.)  325;  Whelan  v.  Reilly, 
61  Mo.  565. 

64  Padfleld  v.  Green,  85  111.  529;  Herring  v.  Hottendorf,  74  N. 
O.  588. 

es  Ritch  v.  Smith,  82  N.  Y.  627;   Gerrish  v.  Maher,  70  111.  470. 

ee  Breming  v.  Mackie,  3  F.  &  P.  197;  Smith  v.  Kidd,  68  N.  Y. 
130,  23  Am.  Rep.  157;  Park  v.  Cross,  76  Minn.  187,  78  N.  W.  1107, 
77  Am.  St.  Rep.  630. 

67  Smith  v.  Kidd,  68  N.  Y.  130,  23  Am.  Rep.  157;  Brewster  v. 
Games,  103  N.  Y.  556,  9  N.  E.  323. 

es  Davis  v.   Waterman,   10  Vt.   526,   33  Am.   Dec.  216;    Scott   v. 


§  48)  SCOPE   OF  PARTICULAR  AGENCIES.  215 

Agent  to  Ea&ecute  Commercial  Paper. 

Authority  to  draw,  accept,  make,  or  indorse  bills,  notes, 
and  checks  will  not  readily  be  implied  as  an  incident  to  the  ex- 
press authority  of  an  agent.69  It  must  ordinarily  be  con- 
ferred expressly.  The  authority  may  be  implied  if  the  exe- 
cution of  the  paper  is  a  necessary  incident  to  the  business,70 
but  it  will  not  be  deemed  a  necessary  incident  unless  the 
purpose  of  the  agency  cannot  otherwise  be  accomplished.71 
The  rule  has  already  been  illustrated  in  discussing  the  pow- 
ers of  agents  employed  to  buy,72  and  will  be  further  illustrat- 
ed in  the  next  section.73  Where  the  power  is  expressly 
conferred,  it  must  be  strictly  pursued ;  and,  unless  the  -ap- 
parent authority  of  the  agent  exceeds  his  actual  authority, 
paper  executed  by  him  will  not  bind  the  principal  if  the 
agent  departs  from  the  terms  of  his  authority  in  regard  to 
the  amount 74  or  time  7B  of  the  paper  or  its  character  in  other 

Elmerdorf,  12  Johns.  (N.  Y.)  317;  Merrick  v.  Wagner,  44  111.  266; 
Moore  v.  Hall,  48  Mich.  145,  11  N.  W.  844;  Ryan  v.  Tudor,  31  Kan. 
366,  2  Pac.  797. 

As  to  power  to  foreclose,  see  Burchard  v.  Hull,  71  Minn.  430, 
74  N.  W.  163. 

«»  Paige  v.  Stone,  10  Mete.  (Mass.)  160,  43  Am.  Dec.  420;  Web- 
ber v.  Williams  College,  23  Pick.  (Mass.)  302;  Rossiter  v.  Rossiter, 
8  Wend.  (X.  Y.)  494,  24  Am.  Dec.  62;  Chicago  Electric  Light  Rent- 
ing Co.  v.  Hutchinson,  25  111.  App.  476. 

70  Merchants'  Bank  v.  Bank,  1  Ga.  418,  44  Am.  Dec.  665  (power  to 
Indorse  a  necessary  incident  to  authority  to  discount);  Yale  v. 
Eames,  1  Mete.  (Mass.)  486  (power  to  indorse  without  recourse  a 
necessary  incident  to  authority  to  sell  note);  Beaman  v.  Whitney, 
20  Me.  413. 

"  Temple  v.  Pomroy,  4  Gray  (Mass.)  128;  Jackson  T.  Bank,  92 
Tenn.  154,  20  S.  W.  822,  18  L.  R.  A.  663,  36  Am.  St.  Rep.  81.  And 
Bee  case  cited,  note  69. 

*2  Ante,  p.  211.  As  to  power  of  collection  agent  to  indorse,  ante, 
p.  214. 

T«  Post,  p.  217. 

T*  King  v.  Sparks.  77  Ga.  285,  1  S.  E.  260,  4  Am.  St  Rep.  85; 
Black  well  v.  Ketcham,  53  Ind.  184. 

7  e  Batty  v.  Carswell,  2  Johns.  (N.  Y.)  48;  New  York  Iron  Mine 
Co.  v.  Bank,  44  Mich.  344,  6  N.  W.  823;  Tate  v.  Evans,  7  Mo.  419. 


216  LIABILITY  OF  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  8 

respects.7*  Where  the  power  exists,  however,  it  is  of  course 
confined  to  the  business  of  the  agency,  and  does  not  author- 
ize the  making  of  paper  for  the  benefit  of  the  agent,77  or  the 
making  of  accommodation  paper.78 

Agent  to  Manage  Business. 

The  implied  authority  of  an  agent  intrusted  with  the  gen- 
eral management  of  some  particular  business,  like  that  of 
other  agents,  is  prima  facie  coextensive  with  the  business 
delegated  to  his  care,  and  includes  authority  to  do  whatever 
is  necessary  and  usual  to  carry  into  effect  the  principal 
power  or  powers,  and  whatever  is  within  the  scope  of  the 
authority  usually  confided  to  an  agent  employed  in  that 
capacity.79  The  powers  of  managing  agents,  therefore,  while 
differing  with  the  different  nature  of  the  business  which  they 
may  be  employed  to  manage,  are  necessarily  very  broad. 

»«  Nixon  v.  Palmer,  8  N.  Y.  398;  Farmington  Sav.  Bank  v.  Buz- 
zell,  61  N.  H.  612;  Mechanics'  Bank  v.  Schaumburg,  38  Mo.  228; 
Stainback  v.  Read,  11  Grat  281,  62  Am.  Dec.  648. 

As  to  the  liability  of  the  principal  npon  paper  delivered  with  au- 
thority to  insert  material  terms  in  blank  spaces  left  for  that  purpose, 
see  Norton,  B.  &  N.  (3d  Ed.)  258. 

"  North  River  Bank  v.  Aymar,  3  Hill  (N.  Y.)  262;  Camden  Safe 
Deposit  &  Trust  Co.  v.  Abbott,  44  N.  J.  Law,  257;  Steinback  v. 
Read,  11  Grat  281,  62  Am.  Dec.  648. 

A  power  of  attorney  given  by  a  corporation,  authorizing  an  agent 
to  draw  checks  on  a  bank  "for  the  use  of"  the  company,  does  not  im- 
pose on  the  bank  the  responsibility  of  seeing  that  the  money  drawn  on 
such  checks  is  devoted  to  the  use  of  the  company;  and  it  is  protected 
in  the  payment  of  such  a  check,  drawn  payable  to  "Cash,"  to  the 
agent  himself,  where  made  in  good  faith,  and  where  money  had 
usually  been  drawn  by  the  agent  In  that  manner. — Warren-Scharf 
Asphalt  Pav.  Co.  v.  Bank,  38  C.  C.  A.  108,  97  Fed.  181. 

TS  Gulick  v.  Grover,  33  N.  J.  Law,  463,  97  Am.  Dec.  728;  Wallace 
v.  Bank,  1  Ala.  565. 

TO  Smith  v.  McGuire,  3  H.  &  N.  554;  Edmunds  v.  Bushell,  L.  R.  1 
Q.  B.  97;  Watteau  v.  Fenwick  [1893]  1  Q.  B.  346;  German  Fire  Ins. 
Co.  v.  Grunert,  112  111.  68,  1  N.  E.  113;  Roche  v.  Pennington,  90  Wis. 
107,  62  N.  W.  946;  Collins  v.  Cooper,  65  Tex.  460;  Lowenstein  v. 
Lombard,  Ayres  &  Co.,  164  N.  Y.  324,  58  N.  E.  44. 


§  48)  SCOPE   OF  PARTICULAR   AGENCIES.  217 

Thus,  the  manager  of  a  store,80  a  hotel,81  a  farm,8*  or  a 
mine  8S  has  implied  authority  to  buy  upon  his  principal's 
credit  whatever  goods  or  supplies  are  needful  to  conduct  the 
business,  and  to  make  whatever  other  contracts,  such  as 
contracts  of  employment,  are  needful  to  that  end.84  Beyond 
what  is  necessary  and  usual  his  powers  cease.85  The  man- 
ager of  a  store  or  farm  has  implied  authority  to  sell  what- 
ever it  is  necessary  or  usual  in  the  conduct  of  the  business 
to  sell ; 86  but  he  may  not  sell  the  business,87  or  mortgage 
it,88  or  engage  in  a  different  business.89  He  has  no  im- 

»o  Watteau  v.  Fen  wick  [1893]  1  Q.  B.  346;  Hubbard  v.  Ten  Brook, 
124  Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823,  10  Am.  St.  Rep.  585;  Louis- 
ville Coffin  Co.  v.  Stokes,  78  Ala.  372;  National  Furnace  Co.  v.  Manu- 
facturing Co.,  110  111.  427;  Banner  Tobacco  Co.  v.  Jenison,  48 
Mich.  459,  12  N.  W.  655. 

si  Cummings  v.  Sargent,  9  Mete.  (Mass.)  172;  Beecher  v.  Venn, 
85  Mich.  466. 

sz  He  may  not  contract  for  supplies  to  hands,  Carter  v.  Burnham, 
81  Ark.  212;  nor  for  medical  services,  Malone  v.  Robinson  (Miss.) 
12  South.  709.  Cf.  Burley  v.  Kitchell,  20  N.  J.  Law,  305. 

ss  Stuart  v.  Adams,  89  Cal.  367,  26  Pac.  971. 

When  necessary  to  operation  of  mine  that  provisions  be  furnished 
to  keeper  of  boarding  house  where  miners  live,  superintendent  may 
bind  operator  for  such  supplies.  Heald  v.  Hendy,  89  Cal.  632,  27 
Pac.  67. 

»*  Taylor  v.  Labeaume,  17  Mo.  338;  Roche  v.  Pennington,  90 
Wis.  107,  62  N.  W.  946. 

ss  Brock  way  v.  Mullin,  46  N.  J.  Law,  448,  50  Am.  Rep.  442;  Vic- 
toria Gold  Min.  Co.  v.  Fraser,  2  Colo.  App.  14,  29  Pac.  667;  Fisk 
v.  Light  Co.,  3  Colo.  App.  319,  33  Pac.  70. 

The  burden  is  on  plaintiff  to  show  that  the  goods  are  such  as  the 
nature  of  the  business  justified.  Wallis  Tobacco  Co.  v.  Jackson, 
99  Ala.  460,  13  South.  120. 

««  See  Johnston  v.  Investment  Co.,  46  Neb.  480,  64  N.  W.  1100. 

He  may  sell  other  personal  property.  Scudder  v.  Anderson,  54 
Mich.  122,  19  N.  W.  775.  But  see  Holbrook  v.  Oberne,  56  Iowa, 
324,  9  N.  W.  291. 

«7  Vescelius  v.  Martin,  11  Colo.  391,  18  Pac.  338. 

ss  Despatch  Line  of  Packets  v.  Manufacturing  Co.,  12  N.  H.  205, 
228,  37  Am.  Dec.  203;  Henson  v.  Mercantile  Co.,  48  Mo.  App.  214. 

ss  Hazeltine  v.  Miller,  44  Me.  177;  Campbell  v.  Hastings,  29  Ark. 
612. 


218  LIABILITY   OF   PRINCIPAL  TO   THIRD  PERSON.  (Ch.  8 

plied  authority  to  borrow  unless  the  power  to  borrow  is 
necessarily  to  be  implied  from  the  nature  of  the  business,90 
and  the  mere  existence  of  a  sudden  emergency  is  not  enough 
to  justify  borrowing.91  Subject  to  the  same  limitations,  he 
has  no  implied  authority  to  make  negotiable  paper.92 

Insurance  Agent. 

It  is  customary  for  insurance  companies  to  appoint  agents 
at  a  distance  from  the  principal  place  of  business  of  the  com- 
pany for  the  purpose  of  soliciting  insurance  and  conducting 
matters  of  business  between  the  company  and  the  insured. 
Sometimes  the  authority  of  such  agents  extends  simply  to 
procuring  and  forwarding  applications  for  insurance  to  the 
company  for  acceptance;  sometimes  the  authority  extends 
to  accepting  applications,  fixing  the  rate  of  insurance,  filling 
up,  countersigning,  and  issuing  policies  which  they  have  re- 
ceived from  the  company  signed  by  its  general  agents,  col- 
lecting premiums,  and  performing  further  duties.  Insur- 
ance agents  are  frequently  inaccurately  classified  as  "local" 
and  "general,"  but  the  extent  of  the  territory  which  is  to  be 
field  of  his  agency  is  no  test  of  an  agent's  authority  within 
that  field.98  In  conformity  with  the  fundamental  principles 
of  agency,  whether  the  agent  is  authorized  merely  to  procure 
and  forward  applications,94  or  is  authorized  to  accept  appli- 

»o  Perkins  v.  Boothby,  71  Me.  91;  Bickford  v.  Merrier,  107  N.  Y. 
490,  14  N.  E.  438;  Heath  v.  Paul,  81  Wis.  532,  51  N.  W.  876;  Con- 
solidated Nat  Bank  v.  Steamship  Co.,  95  Cal.  1,  30  Pac.  96,  29  Am. 
St.  Rep.  85. 

si  Hawtayne  v.  Bourne,  7  M.  &  W.  595. 

02  Temple  v.  Pomroy,  4  Gray  (Mass.)  128;  Perkins  v.  Boothby,  71 
Me.  91;  Fairly  v.  Nash,  70  Miss.  193,  12  South.  149;  ante,  p.  215. 

Where  the  agent  is  held  out  as  principal,  such  power  is  within  the 
apparent  authority.  Edmunds  v.  Bushell,  L.  R.  1  Q.  B.  97. 

»3  Ermentrout  v.  Insurance  Co.,  63  Minn.  305,  310,  65  N.  W.  635, 
30  L.  R.  A.  346,  56  Am.  St.  Rep.  481. 

»*  Union  Mut.  Life  Ins.  Co.  v.  Wilkinson,  13  Wall.  (U.  S.)  222,  20 
L.  Ed.  617;  Malleable  Iron  Works  v.  Insurance  Co.,  25  Conn.  465; 
Woodbury  Sav.  Bank  &  Building  Ass'n  v.  Insurance  Co.,  31  Conn. 
517;  Brandup  v.  Insurance  Co.,  27  Minn.  393,  7  N.  W.  735;  Kausal 
v.  Insurance  Ass'n,  31  Minn.  17,  16  N.  W.  430,  47  Am.  Rep.  776. 


§  48)  SCOPE   OF  PARTICULAR  AGENCIES.  219 

cations,  issue  policies,  and  perform  other  duties,95  the  dele- 
gation of  the  powers  expressly  conferred,  unless  their  ex- 
tent is  expressly  limited,  carries  with  it  by  implication  au- 
thority to  do  all  things  which  are  reasonably  necessary  or 
usual  to  effect  the  principal  powers,  and  the  authority  thus 
prima  facie  to  be  implied  is  the  apparent  authority  of  the 
agent  in  dealing  with  persons  who  have  not  notice  of  any 
limitations.  Within  the  scope  of  his  apparent  authority  the 
acts  of  the  agent  are  binding  upon  the  company,  and  beyond 
its  scope  the  company  is  not  bound.88  Notice  of  limitations 
upon  the  agent's  authority  may  be  actual  or  constructive.91 
Frequently  provisions  limiting  the  authority  of  the  agent  are 
inserted  in  the  policy,  and,  so  far  as  concerns  his  authority 
to  bind  the  company  by  acts  to  be  performed  after  the  is- 
suance of  the  policy,  such  provisions  operate  as  constructive 
notice  to  the  insured  of  the  limitations  imposed,  and  it  is 
immaterial  whether  or  not  he  reads  the  policy  or  has  actual 
knowledge  of  the  limitations.*8 

•B  Pitney  v.  Insurance  Co.,  65  N.  T.  6;  Ruggles  v.  Insurance  Co., 
114  N.  Y.  415,  21  N.  E.  1000,  11  Am.  St.  Rep.  674;  Forward  v. 
Insurance  Co.,  142  N.  Y.  382,  37  N.  E.  615,  25  L.  R.  A.  637;  Hart- 
ford Fire  Ins.  Co.  y.  Fairish,  73  I1L  166;  Viele  v.  Insurance  Co., 
26  Iowa,  9,  96  Am.  Dec.  83. 

96  Bush  v.  Insurance  Co.,  63  N.  Y.  531;  Lohnes  v.  Insurance  Co., 
121  Mass.  439;  Kyte  v.  Assurance  Co.,  144  Mass.  43,  10  N.  E.  518; 
Smith  v.  Insurance  Co.,  60  Vt.  682,  15  Atl.  353,  1  L.  R.  A.  216,  « 
Am.  St.  Rep.  144;  Ermentrout  v.  Insurance  Co.,  63  Minn.  305,  65 
N.  W.  635,  30  L.  R.  A.  346,  56  Am.  St.  Rep.  481;  Strickland  v.  In- 
surance Co.,  66  Iowa,  466,  23  N.  W.  926;  Hall  v.  Insurance  Co.,  23 
Wash.  610,  63  Pac.  505,  51  L.  R.  A.  288,  83  Am.  St.  Rep.  844. 

•7  Fleming  v.  Insurance  Co.,  42  Wis.  616;  Baines  v.  Ewing,  4  H. 
&  C.  511. 

os  Quinlan  v.  Insurance  Co.,  133  N.  Y.  356,  31  N.  E.  31,  28  Am. 
St.  Rep.  645;  Walsh  v.  Insurance  Co.,  73  N.  Y.  5;  Cleaver  v.  In- 
surance Co.,  65  Mich.  527,  33  N.  W.  660,  8  Am.  St.  Rep.  908;  Bur- 
lington Ins.  Co.  v.  Gibbons,  43  Kan.  15,  22  Pac.  1010,  19  Am.  St. 
Rep.  118.  See,  also,  New  York  Life  Ins.  Co.  v.  Fletcher,  117  U.  S. 
519,  6  Sup.  Ct.  837,  29  L.  Ed.  934. 

Restrictions  in  the  policy  upon  the  agent's  power  to  waive  condi- 


220  LIABILITY  OF  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  8 

Bank  Cashier. 

The  cashier  of  a  bank  is  its  chief  executive  officer.  It  is 
customary  for  him  to  be  intrusted  with  the  funds  and  securi- 
ties of  the  bank,  and,  directly  or  through  its  subordinate 
officers  under  his  direction,  to  conduct  its  financial  opera- 
tions.98 His  implied  authority  is  very  large.  "Ordinarily 
the  cashier,  being  the  ostensible  executive  officer  of  a  bank, 
is  presumed  to  have,  in  the  absence  of  positive  restrictions, 
all  the  powers  necessary  for  such  an  officer  in  the  transac- 
tion of  the  legitimate  business  of  banking."  10°  Thus,  by 
virtue  of  his  office,  he  usually  has  authority  to  collect  debts x 
due  the  bank ; 101  to  receive  payment  and  give  certificates 
of  deposit  and  other  proper  vouchers,  and  when  the  money 
is  in  bank  to  certify  a  check  to  be  good ; 102  to  draw  checks 
and  bills  upon  the  funds  of  the  bank  deposited  elsewhere ; 103 
to  buy  and  sell  bills  of  exchange ; 10*  to  indorse  and  transfer 
negotiable  paper  in  the  regular  course  of  business;105  as 
well  as  to  do  many  other  acts  necessary  or  usual  in  the 

tions  of  the  policy  cannot  be  construed  to  refer  to  any  act  or  knowl- 
edge of  the  agent  that  occurred  before  the  policy  issued.  Grouse 
v.  Insurance  Co.,  79  Mich.  249,  44  N.  W.  496.  See,  also,  Mutual 
Ben.  Life  Ins.  Co.  v.  Robison,  7  C.  C.  A.  444,  58  Fed.  723,  22  L.  R. 
A.  325;  Kausal  v.  Insurance  Ass'n,  31  Minn.  17,  16  N.  W.  430,  47 
Am.  Rep.  776. 

There  is  much  conflict  as  to  the  construction  and  effect  of  such 
provisions.  See  Joyce,  Ins.  §§  430-439. 

»»  Merchants'  Nat.  Bank  v.  Bank,  10  Wall.  (U.  S.)  604,  19  L.  Ed. 
1008. 

100  West  St.  Louis  Sav.  Bank  v.  Bank,  95  U.  S.  557,  24  L.  Ed.  490. 

101  Merchants'  Nat  Bank  v.  Bank,  10  Wall.  (U.  S.)  604,  19  L.  Ed. 
1008;  Badger  v.  Bank,  26  Me.  428. 

102  Merchants'  Nat.  Bank  v.  Bank,  10  Wall.   (U.   S.)  604,   19  L. 
Ed.  1008;  Cooke  v.  Bank,  52  N.  Y.  96,  11  Am.  Rep.  667. 

108  Merchants'  Nat.  Bank  v.  Bank,  10  Wall.  (U.  S.)  604,  19  L.  Ed. 
1008;  Morse,  Banks  &  B.  f  159. 

io4Fleckner  v.  Bank,  8  Wheat.  (U.  S.)  338,  360,  5  L.  Ed.  631; 
Wild  v.  Bank,  3  Mason  (U.  S.)  505,  Fed.  Gas.  No.  17,646. 

ion  wild  v.  Bank,  3  Mason  (U.  S.)  505,  Fed.  Gas.  No.  17,646;  City 
Bank  v.  Perkins,  29  N.  Y.  554,  86  Am.  Dec.  332. 


§  48)  SCOPE   OF   PARTICULAR  AGENCIES.  221 

conduct  of  the  business.106  Within  the  scope  of  the  authority 
ordinarily  confided  to  cashiers,  as  determined  by  usage,  his 
acts  are  binding  upon  the  bank,  in  favor  of  third  persons, 
notwithstanding  unusual  restrictions  upon  his  authority,  of 
which  they  have  not  notice.107  Thus  if,  in  disobedience  to 
his  instructions,  he  certifies  a  check,  the  bank  is  bound  by 
the  certification,  unless  the  person  to  whom  it  is  issued 
has  notice  that  the  cashier  was  forbidden  to  certify.108  And 
if  he  certifies  without  funds  in  bank,  the  person  in  whose 
favor  the  check  is  certified  being  ignorant  of  the  fact,  the 
bank  is  liable  thereon  to  him  or  to  a  subsequent  innocent 
holder.109  His  apparent  authority  is,  of  course,  confined  to 
transactions  for  the  benefit  of  the  bank,  and  does  not  ex- 
tend to  making  accommodation  paper.110 

Shipmaster. 

A  shipmaster  is  an  agent  appointed  for  the  purpose  of 
conducting  the  voyage  on  which  the  ship  is  engaged,  and 
his  implied  authority,  arising  from  the  nature  of  his  duties 
and  from  usage,  is  very  broad.111  "The  master  is  a  general 
agent  to  perform  all  things  relating  to  the  usual  employment 
of  his  ship,  and  the  authority  of  such  an  agent  to  perform 
all  things  usual  in  the  line  of  business  in  which  he  is  em- 

io«  As  to  his  authority  generally,  see  Morse,  Banks  &  B.  §§  152, 
160. 

lor  Fleckner  v.  Bank,  8  Wheat.  (U.  S.)  360,  5  L.  Ed.  631;  Minor 
Y.  Bank,  1  Pet.  (U.  S.)  46,  70,  7  L.  Ed.  47;  Case  v.  Bank,  100  U.  S. 
446,  454,  25  L.  Ed.  695;  Matthews  v.  Bank,  1  Holmes  (U.  S.)  396. 
Fed.  Cas.  No.  9,286;  Cooke  v.  Bank,  52  N.  Y.  96,  11  Am.  Rep.  667; 
City  Bank  v.  Perkins,  29  N.  Y.  554,  86  Am.  Dec.  332;  Clarke  Nat. 
Bank  v.  Bank,  52  Barb.  592;  Settle  v.  Insurance  Co.,  7  Mo.  379. 

ins  Merchants'  Nat.  Bank  v.  Bank,  10  Wall.  (U.  S.)  604,  19  L.  Ed. 
1008;  Cooke  v.  Bank,  52  N.  Y.  96,  11  Am.  Rep.  667. 

109  Farmers'  &  Mechanics'  Bank  v.  Bank,  14  N.  Y.  623;  Id.,  16 
N.  Y.  125,  69  Am.  Dec.  678;  Meads  v.  Bank,  25  N.  Y.  143,  82  Am, 
Dec.  331.  See,  also,  cases  cited  in  last  note. 

no  West  St.  Louis  Sav.  Bank  v.  Bank,  95  U.  S.  557,  24  L.  Ed.  490. 

in  Arthur  v.  Barton,  6  M.  &  W.  138;  Beldon  v.  Campbell,  6  Ex. 
886.  See  Story,  Ag.  §  116  et  seq. 


222  LIABILITY  OF  PRINCIPAL  TO   THIRD   PERSON.  (Oh.  8 

ployed  cannot  be  limited  by  any  private  order  or  direction 
not  known  to  the  party  dealing  with  him."  112  He  is  agent 
of  the  shipowner,  and  ordinarily  has  nothing  to  do  with  the 
cargo  except  to  fulfill,  as  agent  of  the  shipowner,  the  con- 
tract to  carry  the  cargo  to  its  destination,  but  in  cases  of 
emergency  he  may  act  as  agent  of  the  owner  of  the  goods.  11S 
For  a  discussion  of  the  peculiar  powers  of  the  master  of 
a  ship,  the  student  is  referred  to  the  special  works  upon 
maritime  law. 

Factor. 

A  factor  is  an  agent  whose  ordinary  business  is  to  sell  goods 
of  which  he  is  intrusted  with  possession  by  his  principal  for 
a  commission.  He  is  often  called  a  commission  merchant 
or  consignee.114  When,  in  consideration  of  additional  com- 
pensation, he  guaranties  the  payment  of  the  price,  he  is 
called  a  del  credere  agent.115  Unless  his  authority  is  ex- 
pressly limited,  a  factor  has  implied  authority  to  sell  the 
goods  intrusted  to  him  in  his  own  name,116  to  sell  at  such 
times  and  for  such  prices  as  he  thinks  best,117  to  sell  on 
reasonable  credit,118  to  warrant  the  goods  if  it  is  usual  to 

112  Smith's  Mercantile  Law,  59,  quoted  in  Grant  v.  Norway,  10 
C.  B.  665. 

As  to  his  power  to  bind  the  shipowner  by  a  bill  of  lading  for 
goods  not  on  board,  ante,  200. 

us  Ante,  p.  41. 

IK  Story,  Ag.  §§  33,  34. 

Where,  in  a  voyage,  he  accompanies  the  cargo,  with  authority  to 
sell  it  and  to  purchase  a  return  cargo,  he  is  termed  a  "supercargo." 

us  Post,  p.  437. 

ii«  Baring  v.  Corrie,  2  B.  &  Aid.  137;  Smart  v.  Slanders,  3  G.  B. 
380;  Ex  parte  Dixon,  4  Ch.  D.  133;  Graham  v.  Duckwall,  8  Bush 
(Ky.)  12.  See  Bowstead,  Dig.  Ag.  68. 

117  Smart  v.  Sanders,  3  C.  B.  380. 

us  Scott  v.  Surman,  Willes,  406;  Houghton  v.  Matthews,  3  B.  & 
P.  489;  Goodenow  v.  Tyler,  7  Mass.  36,  5  Am.  Dec.  22;  Van  Alen  v. 
Vanderpool,  6  Johns.  (N.  Y.)  69,  5  Am.  Dec.  192;  Daylight  Burner 
Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45;  Burton  v.  Goodspeed,  69 
111.  237. 

On  a  sale  for  credit  he  may  take  a  bill  or  note  in  payment    Goode- 


§  48)  SCOPE   OF   PARTICULAR  AGENCIES.  223 

warrant  that  class  of  goods,119  and  to  receive  payment.120 
A  factor  has  no  implied  authority  to  delegate  his  author- 
ity;121 to  barter;128  or  to  pledge,123  unless  for  charges  on 
the  goods  themselves,124  although  in  many  jurisdictions  in 
this  respect  changes  have  been  made  by  the  factors'  acts.125 
Like  other  agents,  a  factor  is  bound  to  exercise  skill,  care, 
and  diligence,  to  exercise  good  faith,  to  account,  and  to  obey 
the  instructions  of  his  principal.128  He  may  depart  from  his 
instructions,  however,  if  such  a  course  is  justified  by  the  oc- 
currence of  an  unforeseen  emergency,  or  if  obedience  would 
impair  his  security  for  advances.127  As  between  himself  and 
third  persons,  the  principal  is  bound  by  the  acts  of  the  factor 
within  the  scope  of  the  authority  which  is  usually  confided  to 

now  v.  Tyler,  supra;  Greely  v.  Bartlett,  1  Greenl.  (Me.)  172,  10 
Am.  Dec.  54. 

ii»  Randall  v.  Kehlor,  60  Me.  37,  11  Am.  Rep.  169  (semble).  Of. 
Argersinger  v.  Macnaughton,  114  N.  Y.  535,  21  N.  E.  1022,  11  Am. 
St  Rep.  687.  See,  also,  Dingle  v.  Hare,  7  C.  B.  (N.  S.)  145;  Schne- 
hardt  v.  Aliens,  1  Wall.  (U.  S.)  359,  17  L.  Ed.  642.  Ante,  p.  207. 

120  Drink  water  v.  Goodwin,  Cowp.  251;  Daylight  Burner  Co.  v. 
Odlin,  51  N  H.  56,  12  Am.  Rep.  45;  Rice  v.  Groffrnaiin,  56  Mo.  434. 

1*1  Cochran  v.  Irlam,  Cowp.  251;  Solly  v.  Rathbone,  2  M.  &  S. 
298;  Warner  v.  Martin,  11  How.  (U.  S.)  209,  13  L.  Ed.  667.  Unless 
justified  by  usage,  Trueman  v.  Loder,  11  Ad.  &  E.  589;  Warner  v. 
Martin,  supra.  Ante,  p.  207. 

i«  Guerreiro  v.  Peile,  6  B.  &  Aid.  616;  Wing  v.  Neal  (Me.)  2  Atl. 
881.  Ante,  p.  207. 

us  Paterson  v.  Tash,  Str.  1178;  Martini  v.  Coles,  1  M.  &  S.  140; 
Guichard  v  Morgan,  4  Moore,  36;  Warner  v.  Martin,  11  How.  (U. 
S.)  209,  13  L.  Ed.  667;  Allen  v.  Bank,  120  U.  S.  20,  7  Sup.  Ct.  460. 
30  L.  Ed.  573:  Kinder  v.  Shaw,  2  Mass.  397;  Michigan  State  Bank 
v.  Gardner,  15  Gray  (Mass.)  362;  Rodriguez  v.  Hefferman,  5  Johns. 
Cb.  (N.  Y.)  417;  Gray  v.  Agnew,  95  111.  315;  Wright  v.  Solomon,  19 
Cal.  64,  79  Am.  Dec.  196. 

"*  Evans  v.  Potter,  2  Gall.  12,  Fed.  Cas.  No.  4,569  (duties).  Ac- 
cepting bills  drawn  by  the  principal  to  be  provided  for  out  of  pro- 
ceeds does  not  authorize  pledging  the  goods.  Gill  v.  Kyiner,  5 
Moore,  503;  Fielding  v.  Kymer,  2  B.  &  B.  639.  But  see  Boyce  v. 
Bank  (C.  C.)  22  Fed.  53. 

125  Post,  pp.  316,  317.         i2«  Post,  p.  396.  «?  Post.  p.  40.°,. 


224  LIABILITY   OF  PRINCIPAL  TO   THIRD   PERSON.  (Ch.  8 

such  an  agent,  unless  they  have  notice  of  special  instructions 
imposing  restrictions.18' 

Broker. 

A  broker  is  an  agent  whose  ordinary  business  is  to  nego- 
tiate or  make  contracts  with  third  persons  on  behalf  of  per- 
sons by  whom  he  may  be  employed,  for  a  commission.  He 
is  a  middleman  or  intermediate  negotiator  between  the  par- 
ties.129 The  implied  authority  of  a  broker  depends  largely 
upon  the  kind  of  brokerage  in  which  he  is  engaged,  the  usages 
in  the  different  species  of  brokerage  agencies  being  necessarily 
diverse.  Thus,  a  broker  has,  as  a  rule,  no  authority  to  con- 
tract in  his  own  name  18°  or  to  delegate  his  authority,131  but, 
in  conformity  with  the  usage  of  the  stock  exchange,  a  stock 
broker  has  in  many  transactions  implied  authority  to  buy 
and  sell  in  his  own  name  182  and  to  act  by  a  substitute.133 
When  a  broker  is  employed  to  buy  or  sell,  he  differs  from 
a  factor,  in  that  he  is  not  intrusted  with  possession.  He  has 
therefore  no  implied  authority  to  sell  in  his  own  name  or  to 
receive  payment.184  He  has  no  implied  authority  to  sell  on 
credit  unless  there  is  usage  to  that  effect.185  It  seems  that 
he  has  implied  authority  to  warrant  the  goods  if  in  the 
sale  of  such  goods  a  warranty  is  usual.188  He  has  implied 

izs  EX  parte  Dixon,  4  Ch.  D.  133;   Pickering  v   Busk,  15  East,  38; 
Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45. 
120  See  Story,  Ag.  §§  28-32. 
iso  Baring  v.  Corrie,  2  B.  &  Aid.  137;  Saladin  v.  Mitchell,  45  111.  79. 

131  Henderson  v.  Barnwell,  1  Y.  &  J.  387;    Cochran  v.  Irlam,  2 
M.  &  S.  301. 

132  Markham  v.  Jaudon,  41  N.  Y.  239;    Skiff  v.  Stoddard,  63  Conn. 
198,  26  Atl.  874,  28  Atl.  104,  21  L.  R.  A.  102;    Brewster  v.  Van 
Liew,  119  111.  554,  8  N.  E.  842. 

iss  Rosenstock  v.  Tormey,  32  Md.  169,  3  Am.  Rep.  125. 

is*  Baring  v.  Corrie,  2  B.  &  Aid.  137;  Higgins  v.  Moore,  34  N. 
Y.  417;  Graham  v.  Duckwall,  8  Bush  (Ky.)  12;  Saladin  v.  Mitchell, 
45  111.  79. 

i3G  Wiltshire  v.  Sims,  1  Camp.  258;  Boorman  v.  Brown,  3  Q.  B. 
611.  - 

ise  Schuchardt  v.  Aliens,  1  Wall.  (U.  S.)  359,  17  L.  Ed.  642;   The 


§  4:8)  SCOPE   OF  PARTICULAR  AGENCIES.  225 

authority  to  make  a  note  or  memorandum  to  satisfy  the 
statute  of  frauds.137  Within  the  scope  of  the  authority  or- 
dinarily confided  to  a  broker  employed  to  perform  the  busi- 
ness delegated  to  him,  the  acts  of  a  broker  are  binding  upon 
his  principal  in  favor  of  persons  dealing  with  him  in  igno- 
rance of  unusual  limitations.138 

Auctioneer. 

An  auctioneer  is  an  agent  whose  ordinary  business  is  to 
sell  goods  or  other  property  to  the  highest  bidder  at  public 
sale,  for  a  commission.  Although  he  is  the  agent  of  the  seller, 
and  is  exclusively  his  agent  until  the  knocking  down  of  the 
goods,  he  is  deemed  to  be  the  agent  of,  and  has  implied 
authority  to  sign  a  note  or  memorandum  on  behalf  of,  both 
seller  and  buyer  to  satisfy  the  statute  of  frauds.139  His 
agency  extends  only  to  making  sale,  and  ceases  as  soon  as 
it  is  made.140  The  principal  may,  of  course,  direct  the  man- 
Monte  Allegre,  9  Wheat.  (U.  S.)  G16,  644,  6  L.  Ed.  174;  Andrews  v. 
Kneeland,  6  Cow.  (N.  Y.)  354.  See,  also,  ante,  p.  207.  But  see  Dotld 
v.  Farlow,  11  Allen  (Mass.)  426,  87  Am.  Dec.  726,  where  it  was  held 
that  a  merchandise  broker  can  have  no  implied  authority  from  the 
usage  of  trade  to  warrant  goods  to  be  merchantable,  and  that  evi- 
dence to  prove  such  usage  is  inadmissible. 

"7  Parton  v.  Crofts,  16  C.  B.  (N.  S.)  11;  Thompson  v.  Gardner, 
1  C.  P.  D.  777. 

las  Lobdell  v.  Baker,  1  Mete.  (Mass.)  193,  35  Am.  Dec.  358. 

i8»  Simon  v.  Metivier,  1  Wm.  Bl.  599;  Hinde  v.  Whitehouse,  7 
East,  558;  Morton  v.  Dean,  13  Mete.  (Mass.)  385;  McComb  v.  Wright, 
4  Johns.  Ch.  (N.  Y.)  659. 

"The  technical  ground  is  that  the  purchaser,  by  the  very  act  of 
bidding,  connected  with  the  usage  and  practice  of  auction  sales, 
loudly  and  notoriously  calls  on  the  auctioneer  or  his  clerk  to  put 
down  his  name  as  the  bidder,  and  thus  confers  on  the  auctioneer  or 
his  clerk  authority  to  sign  his"  name."  Per  Shaw,  C.  J.,  hi  Gill  v. 
Bicknell,  2  Gush.  (Mass.)  355.  See  Tiffany,  Sales,  77. 

"0  Seton  v.  Slade,  7  Ves.  276.  The  authority  to  sign  the  memo- 
randum ends  with  the  sale.  Horton  v.  McCarty,  53  Me.  394;  Bam- 
ber  v.  Savage,  52  Wis.  110,  8  N.  W.  609,  38  Am.  Rep.  723.  A  recent 
English  case  holds,  however,  that  the  vendee  cannot  revoke  the  auc- 
TIFT.P.&  A.— 15 


226  LIABILITY   OF  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  8 

ner  and  terms  of  sale,  and  it  is  the  duty  of  the  auctioneer  to 
obey  his  instructions.141  The  conditions  of  sale  are  ordina- 
rily published  or  announced  at  the  time  of  sale,  and  when  the 
conditions  as  stated  are  in  conformity  with  the  instructions 
of  the  principal  they  are  binding  upon  seller  and  buyer.142 
Evidence  of  verbal  declarations  on  the  part  of  the  auctioneer 
to  vary  the  printed  conditions  of  sale  is  inadmissible.143 
When  the  principal  places  some  unusual  limitation  upon  the 
authority  of  the  auctioneer,  who  fails  to  give  notice  of  the 
limitation  and  sells  in  disregard  of  his  instructions,  it  would 
seem  that  the  sale,  being  within  the  apparent  authority  of 
the  auctioneer,  would  be  binding  upon  the  principal;  but  it 
has  been  held  that  if  the  auctioneer  is  not  authorized  to 
sell  for  less  than  a  certain  amount  and  sells  for  less,  although 
he  does  not  give  notice  of  the  limitation,  the  principal  is  not 
bound  by  the  sale.144  The  implied  authority  of  an  auctioneer 
is  necessarily  narrow.  He  has  implied  authority  to  receive 
payment  of  so  much  of  the  price  as  by  the  terms  of  sale  is 
to  be  paid  down,145  and  in  the  case  of  personal  property  may 
maintain  an  action  in  his  own  name  for  the  price  or  for 
the  goods,  if  the  conditions  are  not  complied  with ;  this  doc- 
trine standing  upon  his  right  to  receive,  and  his  responsi- 
bility to  the  principal  for,  the  price,  and  his  lien  upon  the 

tioneer's  authority  to  sign.  Van  Praagh  v.  Everidge  [1902]  2  Ch. 
266. 

1*1  Williams  v.  Poor,  3  Cranch,  C.  C.  (U.  S.)  251,  Fed.  Gas.  No. 
17,732;  Steele  v.  Ellmaker,  11  Serg.  &  R.  (Pa.)  86. 

142  Sykes  v.  Giles,  5  M.  &  W.  645;  Farr  v.  John.  23  Iowa,  286, 
92  Am.  Dec.  426;  Morgan  v.  East,  126  Ind.  42,  25  N.  E.  867,  9  L.  R. 
A.  558. 

14«  Gunnls  v.  Erhart,  1  H.  Bl.  290;  Shelton  v.  Llvlus,  2  C.  &  J.  411. 

*4«  Bush  v.  Cole,  28  N.  Y.  261,  84  Am.  Dec.  343.  The  court  said 
that  the  auctioneers  "were  constituted  agents  for  a  particular  pur- 
pose and  under  a  limited  and  circumscribed  authority,  and  could 
not  bind  their  principals  beyond  their  authority"— apparently  resting 
the  decision  upon  the  ground  that  the  agency  was  special. 

1*5  Williams  v.  Millington,  1  H.  Bl.  81;  Thompson  v.  Kelly,  101 
Mass.  291,  3  Am.  Rep.  353.  Of.  Coppin  v.  Walker,  7  Taunt  237. 


§  48)  SCOPE   Or  PAETICULAB  AGENCIES.  227 

goods  for  his  commission.149  An  auctioneer  has  no  im- 
plied authority  to  sell  at  private  sale ; 14T  to  sell  on  credit ; 148 
or  to  take  a  bill  or  note  or  check  in  payment  when  it  is 
provided  that  the  whole  or  any  part  of  the  price  is  to  be  paid 
down;149  to  warrant  the  goods;160  to  deliver  the  goods 
without  payment  or  to  allow  a  set-off;1"1  to  rescind  a  sale 
once  made; 18S  or  to  delegate  his  authority.18* 

Attorney  at  Law. 

An  attorney  at  law  is  an  agent  whose  ordinary  business  is 
to  conduct  suits  and  controversies  in  courts  of  law  and 
other  judicial  tribunals.  He  is  an  officer  of  court,  and  must 
be  duly  qualified  by  the  court  in  which  he  appears.  In 
England  the  business  of  litigation  is  divided  between  bar- 
risters, or  counsel,  who  represent  their  clients  when  speak- 
ing for  them  in  court,  and  solicitors,  who  represent  them 
throughout  the  cause;  but  in  this  country  these  functions 

t*«  Hulse  v.  Young,  16  Johns.  1;  Johnson  v.  Buck,  35  N.  J.  Law, 
338,  10  Am.  Rep.  243;  Flanigan  v.  Crull,  53  111.  352,  and  cases  cited 
In  preceding  note. 

"In  case  of  real  estate,  he  can  have  no  such  special  property,  and 
would  not  ordinarily  be  held  entitled  to  receive  the  price.  But  when 
the  terms  *  *  *  contemplate  the  payment  of  a  deposit  •  •  • 
he  may  receive  and  receipt  for  the  deposit,"  and,  it  seems,  may  sue 
for  It.  Per  Wells,  J.,  Thompson  v.  Kelly,  101  Mass.  291,  3  Am.  Rep. 
853. 

»«T  Daniel  v.  Adams,  Ambl.  495;  Marsh  v.  Jelf,  3  P.  &  P.  234, 

»««  Williams  v.  Evans,  L.  R.  1  Q.  B.  352;  Sykes  v.  Giles,  5  M. 
&  W.  695. 

"•Williams  v.  Evans,  L.  R.  1  Q.  B.  352;  Sykes  v.  Giles,  5  M.  & 
W.  695;  Broughton  v.  Silloway,  114  Mass.  71.  May  accept  check, 
If  usage,  Farrer  v.  Lacy,  25  Ch.  D.  636. 

iso  Payne  v.  Leconfleld,  51  L.  J.  Q.  B.  642;  Blood  v.  French,  9 
Gray  (Mass.)  197. 

i»i  Brown  v.  Staton,  2  Chit  353. 

152  Nelson  v.  Albridge,  2  Starkie,  435;  Boinest  v.  Leignez,  2  Rich. 
Law  (S.  C.)  464. 

158  Com.  v.  Harnden,  19  Pick.  (Mass.)  482;  Stone  v.  State,  12  Mo. 
400. 


228  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Ch.  8 

are  usually  exercised  by  one  and  the  same  person.154 
Broadly  speaking,  an  attorney  has  implied  authority  "to 
do  all  acts,  in  or  out  of  court,  necessary  or  incidental  to  the 
prosecution  or  management  of  the  suit,  and  which  affect  the 
remedy  only,  and  not  the  cause  of  action." 155  It  is  im- 
possible, however,  by  a  general  statement  to  indicate  the 
line  between  the  acts  which  he  may  and  may  not  do.  Thus, 
for  example,  he  may  make  admissions  of  fact; 1B8  submit  a 
cause  to  arbitration;  1B7  stipulate  that  the  judgment  shall  be 
the  same  as  in  another  pending  action;158  dismiss  or  con- 
tinue the  action ; 159  or  release  an  attachment  before  judg- 
ment.160 On  the  other  hand,  he  may  not  confess  judg- 
ment;181 release  the  cause  of  action;162  release  property 
of  the  defendant  from  the  lien  of  a  judgment  or  execu- 
tion;168 or,  according  to  the  weight  of  authority  in  the 
United  States,  compromise  the  claim.16* 

164  Wright,  Prin.  &  Ag.  101.     As  to  implied  authority  of  counsel 
and  solicitors,  see  Bowstead,  Dig.  Ag.  72-74. 

165  Moulton  v.  Bowker,  115  Mass.  40,  15  Am.  Rep.  72,  per  Gray, 
C.  J.     See,  also,  Halliday  v.  Stuart,  151  U.  S.  229,  14  Sup.  Ct.  302, 
38  L.  Ed.  141. 

i5«  Lewis  v.  Sumner,  13  Mete.  (Mass.)  269;  Pike  v.  Emerson,  5 
N.  H.  393,  22  Am.  Dec.  468;  Farmers'  Bank  v.  Sprigg,  11  Md.  389. 

157  Holker  v.   Parker,   7   Cranch   (U.   S.)   436,  3  L.   Ed.   396;     In- 
habitants  of   Buckland   v.   Inhabitants   of   Conway,    16   Mass.   396; 
Brooks  v.  Town  of  New  Durham,  55  N.  H.  559;   Sargeant  v.  Clark, 
108  Pa.  588. 

IBS  North  Missouri  R.  Co.  v.  Stephens,  36  Mo.  150,  88  Am.  Dec. 
138;  Ohlquest  v.  Farwell,  71  Iowa,  231,  32  N.  W.  277. 

158  Gaillard  v.  Smart,  6  Cow.  (N.  Y.)  385;    Barrett  v.  Railroad  Co., 
45  N.  Y.  628;   Rogers  v.  Greenwood,  14  Minn.  333  (Gil.  256). 

loo  Moulton  v.  Bowker,  115  Mass.  36,  15  Am.  Rep.  72;  Benson  v. 
Carr,  73  Me.  76. 

i«i  Wadhams  v.  Gay,  73  111.  415;  Pfister  v.  Wade,  69  Cal.  133, 
10  Pac.  369. 

162  Mandeville  v.  Reynolds,  68  N.  Y.  528;  Wadhams  v.  Gay,  73 
111.  415. 

IBS  Benedict  v.  Smith,  10  Paige  (N.  Y.)  126;  Phillips  v.  Dobbins, 
56  Ga.  617. 

is*  Mandeville  v.  Reynolds,  68  N.  Y.  528;    Granger  v.  Batch  elder, 


49)        COLLUSION  or  OTHER  PARTY  AND  AGENT.  229 


CONTRACT  INDUCED  BY  COLLUSION  OF  OTHER  PARTY 
AND  AGENT. 

49.  A  contract  made  by  an  agent  under  the  influence  of  brib- 
ery, or,  to  the  knowledge  of  the  other  party,  in  fraud 
of  the  principal,  is  voidable  by  the  principal.* 

An  agent  cannot  be  allowed  to  put  himself  into  a  position 
in  which  his  interest  and  his  duty  will  be  in  conflict ; 2  and,  if 
a  person  who  contracts  with  an  agent  so  deals  with  him  as 
to  give  the  agent  an  interest  against  the  principal,  the  latter, 
on  discovering  the  fact,  may  rescind  the  contract,  notwith- 
standing that  it  was  within  the  scope  of  the  agent's  author- 
ity. Thus,  a  gratuity  given,  or  promise  of  commission  or  re- 
ward made,  to  an  agent  for  the  purpose  of  influencing  the 
execution  of  the  agency,  vitiates  a  contract  subsequently 
made  by  him,  as  being  presumptively  made  under  that  in- 
fluence.8 It  is  enough  that  a  gratuity  is  given  in  order  to 

54  Vt.  248,  41  Am.  Rep.  846;  Maddox  v.  Bevan,  39  Md.  485;  Watt 
v.  Brookover,  35  W.  Va.  323,  13  S.  E.  1007,  29  Am.  St.  Rep.  8J1; 
Wetberbee  v.  Fitch,  117  111.  67,  7  N.  E.  513;  Jones  v.  Inness,  32  Kan. 
177,  4  Pac.  95;  Preston  v.  Hill,  50  Cal.  43,  19  Am.  Rep.  647.' 

It  is  otherwise  in  England.  Prestwick  v.  Poley,  18  C.  B.  (N.  S.) 
806.  Accord:  Bonney  v.  Morrill,  57  Me.  368. 

"Although  an  attorney  at  law,  merely  as  such,  has,  strictly  speak- 
ing, .no  right  to  make  a  compromise,  yet  a  court  would  be  disin- 
clined to  disturb  one  which  was  not  so  unreasonable  In  itself  as  to 
be  exclaimed  against  by  all,  and  to  create  an  impression  that  the 
judgment  of  the  attorney  has  been  imposed  on  or  not  fairly  exer- 
cised in  the  case."  Holker  v.  Parker,  7  Cranch  (TJ.  S.)  436,  452,  3 
L.  Ed.  396,  per  Marshall,  C.  .7.  Cf.  Jeffries  v.  Insurance  Co.,  110 
U.  S.  305,  4  Sup.  Ct.  8,  28  L.  Ed.  156. 

§  49.     i  Bowstead,  Dig.  Ag.  art.  105. 

2  Post,  p.  415. 

«  Panama  Tel.  Co.  v.  India  R.  Co.,  L.  R.  10  Ch.  515;  Odessa 
Tramways  Co.  v.  Mendel,  8  Ch.  D.  235;  City  of  Findlay  v.  Pertz,  13 
C.  C.  A.  559,  66  Fed.  427,  29  L.  R.  A.  188;  Alger  v.  Keith,  44  C.  C. 
A.  371,  105  Fed.  105;  Young  T.  Hughes,  32  N.  J.  Eq.  372;  United 
States  Rolling  Stock  Co.  v.  Railroad  Co.,  34  Ohio  St  450-460,  32  Am. 
Rep.  380;  Yeoman  v.  Lasley.  40  Ohio  St.  190. 


230  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Oh.  8 

influence  the  agent  generally,  and  the  contract  is  voidable 
although  the  gratuity  was  not  given  in  relation  to  the  par- 
ticular contract.*  The  principal  may,  at  his  option,  rescind ; 
or  he  may  stand  by  the  contract,  and  recover  from  the  agent 
the  amount  of  the  bribe  which  he  has  received,  and  may  also 
recover  from  the  agent  and  the  other  party,  jointly  and  sev- 
erally, any  damages  which  he  has  sustained  by  having  en- 
tered into  the  contract.8  In  conformity  with  the  general 
principle,  if  an  agent  employed  to  sell,  sells  ostensibly  to  a 
third  person,  but  really  to  that  person  and  himself,6  or  if  in 
making  the  sale  the  agent  withholds  information  good  faith 
requires  him  to  communicate,  and  the  purchaser  is  cognizant 
of  the  fraud,7  the  sale  is  voidable,  at  the  option  of  the  prin- 
cipal. 

*  Smith  v.  Sorby,  3  Q.  B.  D.  552,  n. 
»  Post,  p.  828. 

•  Ex  parte  Huth,  Mont  &  G.  667.    See,  also,  Donovan  y.  Campion, 
29  C.  A.  30,  85  Fed.  71.    Post,  p.  416L 

7  Hegenmyer  v.  Marks,  37  Minn.  6,  32  N.  W.  785,  5  Am.  St  Rep. 
808. 


§§  50-61)  LIABILITY  UPON  CONTRACT.  281 


CHAPTER  IX. 

LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON- 
CONTRACT  (CONTINUED). 

50.  Liability  upon  Contract— Undisclosed  Principal— In  General. 

51.  Parol  Evidence. 

52.  Liability  of  Undisclosed  Principal. 

53.  Election  to  Hold  Agent 

54.  Settlement  with  Agent. 

55.  Contract  under  Seal. 

56.  Negotiable  Instrument. 

LIABILITY  UPON  CONTRACT— UNDISCLOSED  PRINCIPAL 
—IN  GENERAL. 

50.  A  principal  may  sue  or  be  sued  upon  a  contract  (not  un- 

der seal  or  a  negotiable  instrument)  made  on  his  be- 
half by  his  agent,  although  the  existence  of  the  prin- 
cipal was  undisclosed,  and  the  other  party  contracted 
in  the  belief  that  he  was  dealing  with  the  agent  as 
principaL 

SAME— PAROL    EVIDENCE. 

51.  When   an   agent    enters   into   a   contract   in   writing    (not 

under  seal  or  a  negotiable  instrument)  in  his  own  name, 
parol  evidence  is  admissible  to  show  that  he  acted  as 
agent  for  an  undisclosed  principal  in  making  the  con- 
tract, so  as  to  charge  the  principal  or  entitle  him  to 
sue  upon  the  contract. 

In  General. 

The  liability  of  the  principal  for  contracts  duly  made  on  his 
behalf  by  his  agent,  where  the  agency  is  disclosed  and  the 
other  party  intends  to  contract  with  the  principal,  is  in  ac- 
cordance with  the  ordinary  principles  of  contract.  The  rule 
that  the  principal  is  bound  by  the  contracts  made  by  his 
agent  on  his  behalf,  where  the  principal,  and  even  the  agency, 
is  undisclosed,  and  may  not  only  be  sued  but  may  sue  on  the 


232  !  LIABILITY  OF  PRINCIPAL  TO   THIRD   PERSON.       .      (Ch.  9 

contract,  is  an  anomaly  introduced  by  agency  into  the  sphere 
of  contract,  which  is  difficult  of  explanation.  It  is  fundamental 
that  no  one  but  the  parties  to  a  contract  can  be  bound  by 
it  or  entitled  to  sue  under  it.  Where  an  agent  contracts  in 
the  name  of  his  principal,  becoming  his  mouthpiece  or 
medium  of  communication,  and  the  other  party  intentionally 
contracts  with  the  principal,  there  is  no  difficulty  in  holding 
that  the  principal  is  a  party.1  But  where  the  agency  is  not 
disclosed,  and  the  other  party  intends  to  contract  solely 
with  the  agent,  whom  he  believes  to  be  acting  on  his  own 
behalf,  to  allow  the  principal,  whose  existence  is  undisclosed, 
to  be  treated  as  such,  is  to  introduce  a  third  party  into  the 
contract.  If  the  principal  has  received  the  benefit  of  the 
contract,  as  in  the  case  of  a  contract  of  sale  where  the  goods 
purchased  by  the  agent  have  come  to  the  use  of  the  principal, 
it  is  not  strange  that  the  courts  should  have  found  some 
fiction  to  hold  him  liable  to  pay  for  them  in  an  action  of 
contract ;  and  it  was  in  fact  in  cases  of  this  nature  that  the 
doctrine  of  the  liability  of  an  undisclosed  principal  had  its  in- 
ception. It  is  at  a  later  date  that  we  find  the  liability  of  the 
other  party  to  the  undisclosed  principal  expressly  recognized, 
and  the  rule  finally  extended  to  other  contracts.  The  rule, 
whatever  its  origin,  is  an  illustration  of  the  identification  of 
principal  and  agent  2  which  runs  through  this  branch  of  the 
law.  As  we  shall  see,  the  other  party  is  not  debarred  of  his 
right  of  action  against  the  person  with  whom  he  intended  to 
contract,  but  he  has  his  election  to  sue  the  real  principal;  and 
the  principal,  as  well  as  the  agent,  may  sue  upon  the  con- 
tract. "If  an  agent  makes  a  contract  in  his  own  name,  the 
principal  may  sue  and  be  sued  upon  it;  for  it  is  a  general 
rule  that  whenever  an  express  contract  is  made  an  action  is 
maintainable  upon  it,  either  in  the  name  of  the  person  with 
whom  it  was  actually  made,  or  in  the  name  of  the  person 
with  whom,  in  point  of  law,  it  was  made."  *  We  are  con- 

§§  50-51.     lAnson,  Contr.   pt  3,  c.  1;   Clark,  Contr.  508-510. 

a  5  Harvard  Law  Rev.  1-6. 

«  Cothay  V.  Fennell,  10  B.  &  C.  G71. 


§§  50-51)  LIABILITY   UPON   CONTRACT.  233 

cerned  at  present  with  the  second  branch  of  the  rule — the  lia- 
bility of  the  undisclosed  principal. 

Contract  m  Writing — Parol  Evidence. 

It  might  also  be  expected  that  the  so-called  parol  evi- 
dence rule  would  render  impossible  a  suit  by  or  against  an 
undisclosed  principal  when  the  contract  is  in  writing  and 
purports  to  be  made  with  or  by  the  agent  on  his  own  be- 
half. Certainly  the  effect  of  such  evidence  appears  to  be  to 
vary  the  terms  of  the  written  instrument,  to  which  the  prin- 
cipal does  not  purport  to  be  a  party,  yet  this  view"  has  not 
prevailed.  "There  is  no  doubt,"  said  Parke,  B.,  "that  where 
such  an  agreement  is  made,  it  is  competent  to  show  that  one 
or  both  of  the  contracting  parties  were  agents  for  other  per- 
sons, and  acted  as  such  agents  in  making  the  contract,  so  as 
to  give  the  benefit  of  the  contract  on  the  one  hand  to,  and 
charge  with  liability  on  the  other,  the  unnamed  principals : 
and  this,  whether  the  agreement  be  or  be  not  required  to  be 
in  writing  by  the  statute  of  frauds ;  and  this  evidence  in  no 
way  contradicts  the  written  agreement.  It  does  not  deny 
that  it  is  binding  on  those  whom,  on  the  face  of  it,  it  pur- 
ports to  bind;  but  it  shows  that  it  also  binds  another,  by 
reason  that  the  act  of  the  agent,  in  signing  the  agreement, 
in  pursuance  of  his  authority,  is  in  law  the  act  of  the  prin- 
cipal." 4 

Whatever  the  merits  of  the  reasoning,  the  rule  is  firmly 
established,  both  in  respect  to  agreements  required  by  the 
statute  of  frauds  B  to  be  in  writing  and  those  which  are 
not.6  But,  as  intimated  in  the  passage  quoted,  the  converse 
of  the  proposition  does  not  hold  true,  and  an  agent  so  con- 

«  Higgins  v.  Senior,  8  M.  &  W.  834. 

B  Bateman  v.  Phillips,  15  East,  272;  Higgins  v.  Senior,  8  M.  &  W. 
834;  Trueman  v.  Loder,  11  Ad.  &  E.  589;  Lerned  v.  Johns,  9  Allen 
(Mass.)  419;  Kingsley  v.  Siebrecht,  92  Me.  23,  42  Ati.  249,  69  Am. 
St.  Rep.  486. 

«  Ford  v.  Williams,  21  How.  (U.  S.)  287,  16  L.  Ed.  36;  Darrow  v. 
Produce  Co.  (C.  C.)  67  Fed.  463;  Huntington  v.  Knox,  7  Cush.  (Mass.) 


234  LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON.  (Oh.  9 

tracting  cannot  show  by  parol  that  it  was  not  the  intention 
of  the  parties  to  bind  him  personally,  and  so  relieve  himself 
from  liability;  for  that,  it  is  said,  would  be  to  allow  parol 
evidence  to  contradict  the  written  instrument.7  Nor  is  the 
principal  in  every  case  allowed  to  introduce  evidence  to  show 
that  he  was  the  real  principal,  for  the  instrument  may  be  so 
drawn  that  the  effect  of  the  evidence  would  be  to  vary  its 
terms.  Thus,  where  an  agent  executed  a  charter  party  in 
his  own  name,  and  was  described  therein  as  the  owner  of 
the  vessel,  it  was  held  that  the  real  owner  could  not  show 
that  the  agent  contracted  on  her  behalf,  so  as  to  maintain  an 
action  on  the  charter  party,  because  such  evidence  would 
contradict  the  statement  that  the  agent  was  owner.8  The 
rule  that  where  the  contract  is  made  in  the  name  of  the  agent 
parol  evidence  is  admissible  to  charge  the  real  principal 
applies  also  if  the  name  of  the  principal  is  disclosed  at  the 
time,  although  the  acceptance  of  the  writing  in  that  form 
with  knowledge  of  the  facts  may  be  evidence  of  an  election 
to  give  credit  to  the  agent  and  to  resort  solely  to  him  as 

374;  Byington  v.  Simpson,  134  Mass.  160,  45  Am.  Rep.  314;  Cole- 
man  v.  Bank.  53  N.  Y.  394;  Lindeke  Land  Co.  v.  Levy,  76  Minn.  364, 
79  N.  W.  314;  and  cases  cited  in  preceding  note. 

"Among  the  ingenious  arguments  *  *  *  there  was  one  which 
It  may  be  fit  to  notice;  the  supposition  that  parol  evidence  was  in- 
troduced to  vary  the  contract,  showing  it  not  to  have  been  made  by 
Higginbotham,  whose  name  Is  inserted  in  it,  but  by  the  defendant, 
who  gave  him  the  authority.  Parol  evidence  is  always  necessary 
to  show  that  the  party  sued  is  the  person  making  the  contract  and 
bound  by  it.  Whether  he  does  so  in  his  own  name  or  in  that  of 
another,  or  In  a  feigned  name,  and  whether  the  contract  is  signed 
by  his  own  hand  or  by  that  of  an  agent,  are  inquiries  not  different 
In  their  nature  from  the  question,  who  Is  the  person  who  has  just 
ordered  goods  in  a  shop.  If  he  is  sued  for  the  price,  and  his  identity 
made  out,  the  contract  is  not  varied  by  appearing  to  have  been  made 
by  him  in  a  name  not  his  own."  Per  Lord  Denman,  In  Trueman 
V.  Loder,  11  Ad.  &  E.  589. 

i  Higgins  v.  Senior,  8  M.  &  W.  834;  post,  p.  856. 

•  Humble  v.  Hunter,  12  Q.  B.  310. 


§§  52-56)      LIABILITY   OF   UNDISCLOSED   PRINCIPAL.  235 

principal."  The  rule  that  parol  evidence  is  admissible  to 
show  who  was  the  real  principal  does  not  apply  to  instru- 
ments under  seal 10  or  to  negotiable  instruments.11 

LIABILITY    OF    UNDISCLOSED    PRINCIPAL. 

52.  Subject  to  the  qualifications  and  exceptions  stated  In  sec- 
tions 53-56,  an  undisclosed  principal  is  liable  to  the 
other  party  upon  a  contract  made  on  his  behalf  by  his 
agent  acting  within  the  scope  of  his  actual  authority, 
or  within  the  scope  of  the  authority  usually  confided 
to  an  agent  employed  to  transact  the  business  del- 
egated. 

SAME— ELECTION  TO  HOLD  AGENT. 

63.  The  principal  is  no  longer  liable  when  the  other  party, 
after  discovery  of  the  real  principal,  has  elected  to 
hold  or  give  exclusive  credit  to  the  agent* 

SAME— SETTLEMENT  WITH  AGENT. 

54.  The  principal  is  no  longer  liable  when,  before  being  called 

upon  by  the  other  party  for  performance,  he  has  in 
good  faith  settled  with  the  agent,  or  made  such  change 
in  the  state  of  the  account  between  himself  and  the 
agent  that  he  would  be  prejudiced  if  compelled  to  set- 
tle with  the  other  party  [provided  that  he  made  such 
settlement  or  change  of  account  in  the  belief,  reason- 
ably induced  by  the  conduct  of  the  other  party,  that 
the  agent  had  already  settled  with  him  or  that  he  had 
elected  to  give  exclusive  credit  to  the  agent]  •* 

SAME— CONTRACT  UNDER  SEAL. 

55.  An  undisclosed  principal  is  not  liable  upon  a  deed  or  other 

instrument  under  seal  executed  on  his  behalf. 

•  Calder  v.  Dobell,  L.  R.  6  C.  P.  486;  Byiugton  v.  Simpson,  134 
Mass.  169,  45  Am.  Rep.  314.  Contra,  Chandler  v.  Coe,  54  N.  H.  561. 

i°  Post,  p.  240.  11  Post,  pp.  243,  337. 

§§  52-56.  i  As  to  the  qualification  made  by  the  proviso,  post, 
pp.  244,  332. 


236  LIABILITY  OF  PRINCIPAL.  TO  THIRD   PERSON.  (Ch.  9 


SAME— NEGOTIABLE  INSTRUMENT. 

56.   An  undisclosed  principal  is  not  liable  upon  a  negotiable 
instrument  made  on  his  behalf. 

Liability  of  Undisclosed  Principal. 

An  undisclosed  principal  is  liable  upon  contracts  made  by 
his  agent  acting  within  the  scope  of  the  authority  conferred 
upon  him.  The  other  party,  upon  discovering  that  the  per- 
son with  whom  he  dealt  as  principal  was  in  fact  the  agent  of 
another,  may  sue  the  principal ;  *  and  this,  whether  the  prin- 
cipal -has  had  the  benefit  of  the  contract,  as  in  the  case  of  a 
sale  of  goods  of  which  he  has  enjoyed  the  use,8  or  whether 
the  contract  is  executory.4  And  the  rule  is  the  same  if  the 
existence  of  the  agency  is  disclosed,  but  the  name  of  the 
principal  is  undisclosed.8 

It  might  well  be  expected  that  the  liability  of  an  undis- 
closed principal  would  be  confined  to  cases  where  the  con- 
tract was  within  the  actual  authority  of  the  agent,  and  would 
not  be  extended  to  cases  where  the  contract,  although  with- 
in the  ordinary  authority  of  an  agent  to  whom  the  particular 
business  has  been  delegated,  is  in  violation  of  his  special 

»  Thomson  v.  Davenport,  9  B.  &  C.  78;  Levitt  v.  Hamblet  [1901J 
2  Q.  B.  53  (customer  of  stockbroker  who  buys  shares  in  accordance 
with  regulations  of  stock  exchange  in  his  own  name);  Hunter  v. 
Giddings,  97  Mass.  41,  93  Am.  Dec.  54;  Schendel  v.  Stevenson,  153 
Mass.  351,  26  N.  E.  689;  Upton  v.  Gray,  2  Me.  373;  Meeker  v.  Clag- 
horn,  44  N.  Y.  349;  Cobb  v.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51; 
Waddill  v.  Sebree.  88  Va.  1012,  14  S.  E.  849,  29  Am.  St.  Rep.  766; 
Lamb  v.  Thompson,  31  Neb.  448,  48  N.  W.  58;  Edwards  v.  Gilde- 
meister,  61  Kan.  141,  59  Pac.  259;  Belt  v.  Power  Co.,  24  Wash.  387, 
64  Pac.  525;  Lindeke  Land  Co.  v.  Levy,  76  Minn.  364,  79  N.  W.  314; 
Simmons  Hardware  Co.  v.  Todd,  79  Miss.  163,  29  South.  851. 

»  Cases  cited  in  preceding  note. 

«  Episcopal  Church  v.  Wiley,  2  Hill,  Eq.  (S.  C.)  584,  30  Am.  Dec. 
386;  Violert  v.  Powell,  10  B.  Mon.  (Ky.)  347,  52  Am.  Dec.  548.  See, 
also,  Schmaltz  v.  Avery,  16  Q.  B.  655;  Calder  v.  Dobell,  L.  K.  6  C. 
P.  486. 

•  Thompson  v.  Davenport,  15  B.  &  C.  78. 


§§  52-56)      LIABILITY   OF  UNDISCLOSED   PRINCIPAL.  237 

instructions ;  in  other  words,  that  the  rule  of  so-called  "ap- 
parent" or  "ostensible"  authority  could  have  no  application. 
But,  as  has  been  explained,  the  latter  rule  rests  upon  a  doc- 
trine of  agency  which  is  broader  than  estoppel,  and  which 
renders  the  principal  liable,  notwithstanding  that  the  agency 
is  unknown  to  the  other  party,  provided  the  contract  is  a 
usual  one  to  be  made  by  an  agent  employed  in  that  capacity.' 
Thus,  where  the  defendants  carried  on  the  business  of  a  beer 
house  by  means  of  an  agent,  who  conducted  it  in  his  own 
name,  it  was  held  that  they  were  liable  to  the  plaintiff  for 
cigars  and  other  articles  such  as  would  usually  be  supplied 
to  and  dealt  in  at  such  an  establishment,  supplied  to  the  agent, 
although  the  plaintiff  gave  credit  only  to  him,  and  he  had 
been  forbidden  tc  buy  such  articles  on  credit.  "Once  it  is 
established,"  said  Wills,  J.,  "that  the  defendant  was  the 
real  principal,  the  ordinary  doctrine  as  to  principal  and 
agent  applies — that  the  principal  is  liable  for  all  the  acts  of 
the  agent  which  are  within  the  authority  usually  confided  to 
an  agent  of  that  character,  notwithstanding  limitations,  as 
between  the  principal  and  the  agent,  put  upon  that  authority. 
It  is  said  that  it  is  only  so  where  there  has  been  a  holding 
out  of  authority,  which  cannot  be  said  of  a  case  where  the 
person  supplying  the  goods  knew  nothing  of  the  existence 
of  a  principal.  But  I  do  not  think  so.  Otherwise,  in 
every  case  of  undisclosed  principal,  or,  at  least,  in  every  case 
where  the  fact  of  there  being  a  principal  was  undisclosed, 
the  secret  limitation  of  the  authority  would  prevail  and  de- 
feat the  action  of  the  person  dealing  with  the  agent,  and 
then  discovering  that  be  was  an  agent  and  had  a  principal. 
But  in  case  of  a  dormant  partner  it  is  clear  law  that  no 
limitation  as  between  the  dormant  and  active  partner  will 
avail  the  dormant  partner  as  to  things  within  the  ordinary 

•  Watteau  r.  Fenwick  [1893]  1  Q.  B.  346.  See,  also,  Hubbard  v. 
Tenbrook,  124  Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823,  10  Am.  St  Rep. 
585;  Hatch  v.  Taylor,  10  N.  H.  538.  Of.  Edmunds  v.  Bushell,  L.  B. 
1  Q.  B.  97;  Ex  parte  Dixon,  4  Ch.  D.  133. 


238  LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON.  (Oh.  9 

authority  of  a  partner.  The  law  of  partnership  is,  on  such  a 
question,  nothing  but  a  branch  of  the  general  law  of  prin- 
cipal and  agent,  and  it  appears  to  me  to  be  undisputed  and 
conclusive  on  the  point  now  under  discussion."  T 

Election  to  Resort  to  Agent. 

Where  an  agent  makes  a  contract  in  his  own  name,  with- 
out disclosing  the  fact  that  he  is  acting  for  a  principal,  the 
other  party,  on  discovering  the  principal,  may  resort  to  the 
principal  or  to  the  agent,  at  his  election.8  And  the  same 
right  of  election  exists  upon  discovering  the  name  of  the 
principal,  where  the  name,  but  not  the  existence  of  an  agency, 
is  undisclosed  at  the  time  the  contract  is  made."  When, 
however,  the  other  party  has  once,  with  knowledge  of  all  the 
facts,  elected  to  hold  the  agent,  he  is  irrevocably  bound  by 
the  election,  and  cannot  afterwards  resort  to  the  principal.10 
What  constitutes  an  election  is  a  question  of  fact  for  the 
jury,  though  the  evidence  of  an  election  may  .be  so  conclu- 
sive as  to  preclude  any  other  finding.11  It  has  been  held 
in  England  and  Massachusetts  that  the  recovery  of  judg- 
ment against  the  agent  is  conclusive  evidence  of  an  election 
to  resort  to  him ; 12  but  in  other  jurisdictions  it  has  been  held 

i  Watteau  v.  Penwick  [1893]  1  Q.  B.  346. 

»  Curtis  v.  Williamson,  L.  R.  10  Q.  B.  57;  Klngsley  v.  Davis,  104 
Mass.  178;  Elliott  v.  Bodine,  59  N.  J.  Law,  567,  36  Atl.  1038;  Yates 
v.  Reperto,  65  N.  J.  Law,  294,  47  Atl.  632. 

He  cannot  divide  the  claim  and  hold  each  for  a  part.  Booth  v. 
Barren,  29  App.  Dlv.  66,  51  N.  Y.  Supp.  391.  See,  also,  cases  cited 
ante,  p.  2,  note. 

«  Patterson  v.  Gandesqui.  9  B.  &  C.  78;  Nelson  v.  Powell,  3  Doug. 
410;  Thomson  v.  Davenport,  9  B.  &  O.  78;  Raymond  v.  Crown  & 
Eagle  Mills,  2  Mete.  (Mass.)  319;  Merrill  v.  Kenyon,  48  Conn.  314. 
40  Am.  Rep.  174. 

10  Curtis  v.  Williamson,  L.  R.  10  Q.  B.  57;   Kingsley  v.  Davis,  104 
Mass.  178. 

11  Curtis  v.  Williamson,  L.  R.  10  Q.  B.  57;   Calder  v.  Dobell,  L.  R. 
6  C.  P.  486. 

12  Priestlie  v.  Fernie,  3  H.  &  C.  977;   Kingsley  v.  Davis,  104  Mass. 
178.     See,  also,  Kendall  v.  Hamilton,  4  App.  Gas.  504,  515.     See,  also, 
Jones  v.  Johnson,  86  Ky.  530,  6  S.  W.  582. 


§§  52-56)      LIABIUTT   OF  UNDISCLOSED   PRINCIPAL.  239 

that  the  principal  is  not  discharged  by  a  judgment  without 
satisfaction  of  it. lf  Merely  bringing  suit  against  the 
agent1*  or  filing  a  claim  against  his  estate  in  bankruptcy10 
is  not  conclusive,  though  it  may,  with  other  facts,  be  evi- 
dence of  an  election.  It  seems  that  the  right  to  hold  the 
principal  upon  his  discovery  must  be  exercised  within  a  rea- 
sonable time,  or  it  will  be  deemed  to  be  waived.1* 

To  constitute  an  election,  the  other  party  must  have  knowl- 
edge not  merely  of  the  agency,  but  as  to  who  is  the  principal ; 
for  although  the  other  party  at  the  time  of  the  contract 
knows  that  he  is  dealing  with  an  agent,  if  he  does  not  know 
whose  agent  he  is  he  has  not  the  power  of  choosing  between 
them,  and  consequently  the  same  rule  applies  as  if  he  did  not 
know  he  was  an  agent  at  all.  Therefore,  under  such  cir- 
cumstances, and  before  discovering  who  the  principal  is,  he 
does  not  make  an  election  by  taking  the  agent's  note,17  or 
charging  the  goods  to  him,18  or  sending  a  statement  made 
out  in  his  name.19 

«  Beymer  v.  Bonsall,  79  Pa.  298;  Brown  v.  Reiman,  48  App.  Div. 
295,  62  N.  Y.  Supp.  663.  Cf.  Maple  v.  Railroad  Co.,  40  Ohio  St.  313. 
48  Am.  Rep.  685.  They  may  be  sued  jointly.  McLean  v.  Sexton. 
44  App.  Div.  520,  60  N.  Y.  Supp.  871. 

i*  Cobb  v.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51;  Ferry  v.  Moore. 
18  111.  App.  135;  Steele-Smith  Grocery  Co.  .v.  Potthast,  109  Iowa. 
413,  80  N.  W.  519. 

IB  Curtis  v.  Williamson,  L.  R.  10  Q.  B.  57. 

i«  Smethhurst  v.  Mitchell,  1  E.  &  E.  622.  See,  also,  Curtis  v.  Wil- 
liamson, L.  R.  10  Q.  B.  57;  Irvine  v.  Watson,  5  Q.  B.  D.  623,  628. 
But  see  Davison  v.  Donaldson,  9  Q.  B.  Div.  623. 

IT  Pentz  v.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558;  Mer- 
rill v.  Kenyon,  48  Conn.  314,  40  Am.  Rep.  174;  Harper  v.  Bank,  54 
Ohio  St.  425,  44  N.  E.  97.  Taking  the  agent's  note  with  knowledge 
and  without  taking  steps  to  hold  the  principal  discharges  him.  Paige 
v.  Stone,  10  Mete.  (Mass.)  160,  43  Am.  Dec.  420;  Perkins  v.  Cady. 
Ill  Mass.  318. 

is  Raymond  v.  Crown  &  Eagle  Mills,  2  Mete.  (Mass.)  319. 

i»  Henderson  v.  Mayhew,  2  Gill  (Md.)  393,  41  Am.  Dec.  434. 


240  LIABILITY  OP  PRINCIPAL  TO   THIRD  PERSON.  (Oh.  9 

Settlement  with  Agent — State  of  Account. 

While  the  other  party  to  the  contract  may,  as  a  rule,  upon 
discovering  the  existence  of  a  principal,  resort  to  him  for 
performance  of  the  contract,  it  is  obvious  that  the  strict  ap- 
plication of  the  rule  will  result  in  hardship,  if  not  injustice, 
to  the  principal  if  he  has  in  the  meantime  settled  with  the 
agent  and  is  compelled  again  to  settle  with  the  other  party. 
The  cases  are  in  conflict  as  to  whether  settlement  with  the 
agent  under  such  circumstances  is  a  defense  when  the  prin- 
cipal is  subsequently  called  upon  by  the  other  party  for  per- 
formance, or  whether  it  is  a  defense  only  provided  the  prin- 
cipal has  made  the  settlement  in  the  belief,  induced  by  the 
words  or  conduct  of  the  other  party,  that  a  settlement  has 
already  been  made  by  the  agent;  in  other  words,  whether 
or  not  the  defense  rests  upon  the  ground  of  estoppel.  The 
question  usually  arises  where  a  contract  of  purchase  has  been 
made  on  behalf  of  an  undisclosed  principal,  who  when  called 
upon  by  the  seller  for  payment  has  already  paid  the  agent 
for  the  goods. 

In  Thomas  v.  Davenport  *°  the  judges  gave  expression  to 
certain  dicta,  the  correctness  of  which  has  been  the  subject 
of  much  subsequent  discussion.  "I  take  it  to  be  the  general 
rule,"  said  Lord  Tenterden,  "that  if  a  person  sells  goods 
(supposing  at  the  time  he  is  dealing  with  a  principal),  but 
afterwards  discovers  that  the  person  with  whom  he  has  been 
dealing  is  not  the  principal  in  the  transaction,  but  agent  for 
a  third  person,  though  he  may  in  {he  meantime  have  debited 
the  agent  with  it,  he  may  afterwards  recover  the  amount  from 
the  real  principal ;  subject,  however,  to  this  qualification : 
that  the  state  of  the  account  between  the  principal  and  the 
agent  is  not  altered  to  the  prejudice  of  the  principal."  And 
Bailey,  J.,  with  more  elaboration,  said:  "If  the  agent  does 
make  himself  personally  liable,  it  does  not  follow  that  the 
principal  may  not  be  liable  also,  subject  to  this  qualification : 
that  the  principal  shall  not  be  prejudiced  by  being  made  per- 

20  9  B.  &  C.  78  (1829). 


§§  52-56)      LIABILITY  OF  UNDISCLOSED  PRINCIPAL.  241 

sonally  liable  if  the  justice  of  the  case  is  that  he  should  not 
be  personally  liable.  If  the  principal  has  paid  the  agent,  or 
the  state  of  the  accounts  between  the  agent  here  and  the 
principal  would  make  it  unjust  that  the  seller  should  call 
on  the  principal,  the  fact  of  payment,  or  such  a  state  of  ac- 
counts, would  be  an  answer  to  the  action  brought  by  the  seller 
where  he  had  looked  to  the  responsibility  of  the  agent." 

In  Heald  v.  Ken  worthy,21  however,  the  foregoing  dicta 
were  disapproved,  and  Parke,  B.,  said :  "The  expression  'make 
it  unjust,'  is  very  vague;  but,  if  rightly  understood,  what  the 
learned  judge  said  is,  no  doubt,  true.  If  the  conduct  of  the 
seller  would  make  it  unjust  for  him  to  call  upon  the  buyer  for 
the  money;  as,  for  example,  where  the  principal  is  induced 
by  the  conduct  of  the  seller  to  pay  his  agent  on  the  faith 
that  the  agent  and  the  seller  have  come  to  a  settlement  on 
the  matter,  or  if  any  representation  to  that  effect  is  made  by 
the  seller  either  by  words  or  conduct,  the  seller  cannot  after- 
wards throw  off  the  mask  and  sue  the  principal.  *  *  * 
I  think  that  there  is  no  case  of  this  kind  where  the  plaintiff 
has  been  precluded  from  recovering,  unless  he  has  in  some 
way  contributed  either  to  deceive  the  defendant  or  to  induce 
him  to  alter  his  position."  The  reasoning  is,  in  short,  that 
the  principal,  having  originally  authorized  his  agent  to  create 
a  debt,  cannot  be  discharged  from  it  except  by  payment,  un- 
less the  seller  has  estopped  himself  by  his  conduct  from  en- 
forcing it  against  the  principal.  In  this  case  it  did  not  dis- 
tinctly appear  that  the  seller  was  ignorant  of  the  existence 
of  a  principal,  although  the  language  of  the  judges  is  broad 
enough  to  cover  the  case  where  the  agency  is  undisclosed  as 
well  as  the  case  where  merely  the  name  of  the  principal  is 
undisclosed. 

In  Armstrong  v.  Stokes,22  however,  it  was  held  that 
where  the  seller  sells  the  goods  to  the  agent,  supposing  at 
the  time  he  is  dealing  with  him  as  principal,  and  ignorant 
of  the  existence  of  any  agency,  payment  by  the  principal  to 

«i  10  Ex.  739  (1855).  «  L.  R.  7  Q.  B.  598  (1872). 

TIFF.P.&  A.— 16 


242  LIABILITY   OF  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  9 

the  agent  is  a  defense  notwithstanding  the  absence  of  facts 
creating  an  estoppel  against  the  seller ;  the  court  thus  giving 
preference  to  the  earlier  statement  of  the  exception,  while 
disclaiming  to  decide  whether  it  would  apply  if  the  agency 
were  avowed,  but  the  principal  unnamed.  Finally,  in  Irvine 
v.  Watson,28  which  was  a  case  where  the  existence  of  the 
agency,  but  not  the  name  of  the  principal,  was  disclosed  to 
the  seller,  the  statement  of  the  exception  as  made  by  Parke, 
B.,  was  approved,  and  it  was  held  that  payment  by  the  prin- 
cipal in  good  faith  to  the  broker  was  no  defense  to  an  action 
by  the  seller  for  the  price.  In  this  case  the  facts  did  not 
render  it  necessary  to  pass  upon  the  correctness  of  the  de- 
cision in  Armstrong  v.  Stokes,  the  court  reserving  the  right 
to  reconsider  that  case  should  it  arise  again ;  but  the  distinc- 
tion there  taken  between  the  case  of  an  undisclosed  agency 
and  that  of  a  disclosed  agency,  where  the  name  of  the  prin- 
cipal is  undisclosed,  was  disapproved. 

The  result  of  the  decisions  in  England  is,  therefore,  that 
in  the  latter  case,  and  probably  in  both  cases,  settlement 
with  the  agent  on  the  part  of  the  principal  is  a  defense  only 
when  he  has  been  induced,  by  words  or  conduct  of  the 

»«  5  Q.  B.  D.  414  (1880).  See,  also,  Davison  v.  Donaldson,  9  Q.  B. 
D.  623. 

In  Irvine  v.  Watson,  5  Q.  B.  D.  623,  a  broker,  employed  by  defend- 
ants to  buy  oil,  bought  from  plaintiffs,  telling  them  that  he  was  act- 
Ing  for  a  principal,  the  terms  being  that  the  oil  should  be  paid  for  by 
cash  "on  or  before  delivery."  Plaintiffs  delivered  without  payment, 
and  defendants,  not  knowing  that  the  broker  had  not  paid,  in  good 
faith  paid  him.  The  broker  soon  after  became  insolvent.  In  an  ac-i 
tion  for  the  price,  it  appeared  that  it  was  not  the  invariable  custom  of 
the  oil  trade  to  insist  on  prepayment  in  such  sales,  and  it  was  held 
that,  in  the  absence  of  such  custom,  the  mere  omission  to  insist  on 
prepayment  was  not  such  conduct  as  would  reasonably  induce  de- 
fendants to  believe  that  the  broker  had  paid  for  the  oil,  and  that  they 
were  hence  liable  for  the  price.  Whether  mere  delay  on  the  part  of 
the  seller  might  not,  In  special  cases,  be  sufficiently  misleading  con- 
duct, as  amounting  to  a  representation  that  he  had  been  paid,  quaere. 
See  remarks  of  Jessel,  M.  R.,  in  Davison  v.  Donaldson,  9  Q.  B.  D.,  at 
page  628. 


§§  52-56)      INABILITY  OP  UNDISCLOSED  PRINCIPAL.  243 

other  party,  sufficient  to  create  an  estoppel,  to  believe  that 
a  settlement  has  already  been  made  by  the  agent,  or,  it 
would  seem,  to  believe  that  the  other  party  has  elected 
to  give  exclusive  credit  to  the  agent,*4  and  has  himself  settled 
with  the  agent  in  that  belief. 

In  this  country  the  question  has  been  little  considered,  and 
the  earlier  statement  of  the  exception  has  generally  been  ap- 
proved without  discussion.** 

Contract  under  Seal. 

While  an  unnamed  principal  may  sue  or  be  sued  upon  a 
simple  contract,26  except  in  the  case  of  commercial  paper,27 
it  is  a  technical  rule  of  the  common  law  that  no  one  who  is 
not  named  in  or  described  as  a  party  to  an  instrument  under 
seal  can  maintain  an  action  or  be  charged  upon  it.  If,  there- 
fore, a  deed  or  other  instrument  to  whose  validity  a  seal  is 
essential  is  made  by  an  agent,  it  must  be  made  in  the  name 

**  "It  surely  must,  at  all  events,  be  the  law  that  In  the  case  of  sale 
of  goods  to  a  broker  the  principal  known  or  unknown  cannot,  by 
paying  or  settling  before  the  time  of  payment  comes  with  his  own 
agent,  relieve  himself  of  responsibility  to  the  seller,  except  in  the  one 
case  where  exclusive  credit  was  given  by  the  seller  to  the  agent. 
But  may  the  payment  or  settlement  to  or  with  the  agent  be  safely 
made  in  such  a  case  after  the  day  of  payment  has  arrived,  and,  if  so, 
within  what  time?  It  seems  to  me  that  it  can  only  safely  be  made 
If  a  delay  has  intervened  which  may  reasonably  lead  the  principal  to 
Infer  that  the  seller  no  longer  requires  to  look  to  the  principal's  credit; 
guch  a  delay,  for  example,  as  leads  to  the  Inference  that  the  debt  is 
paid  by  the  agent,  or  to  the  inference  that,  though  the  debt  is  not 
paid,  the  seller  elects  to  abandon  his  recourse  to  the  principal  and  to 
look  to  the  agent  alone."  Per  Bowen,  J.,  In  Irvine  v.  Watson,  5  Q. 
B.  D.  102.  See,  also,  remarks  of  Bramwell,  L.  J.,  and  Brett,  L.  J., 
commenting  upon  Armstrong  v.  Stokes,  in  Irvine  v.  Watson,  5  Q.  B. 
D.  414.  And  see  Bowstead,  Dig.  Ag.  art.  93. 

25  Fradley  v.  Hyland  (C.  C,)  37  Fed.  49,  2  L.  R.  A.  749;  Thomas  v. 
Atkinson,  38  Ind.  248;  Laing  v.  Butler,  37  Hun  (N.  Y.)  144;  Knappv. 
Simon,  96  N.  Y.  284,  289;  Ketchum  v.  Verdell,  42  Ga.  534.  Contra, 
York  County  Bank  v.  Stein,  24  Md.  447.  For  a  review  of  the  de- 
cisions, see  23  Am.  Law  Rev.  565. 

*e  Ante,  p.  231;  post,  p.  303.  »*  Post,  pp.  244,  303,  336, 


244  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.  (Oh.  9 

of  the  principal,  or  he  will  not  be  bound.18  It  follows  that 
the  doctrine  of  undisclosed  principal  can  have  no  application 
to  this  class  of  contracts.29  The  questions,  what  form  of 
execution  is  sufficient  to  bind  the  principal,  and  what  form 
though  insufficient  to  bind  him  will  bind  the  agent,  will  be 
considered  hereafter.80  If  a  seal  is  affixed  to  a  contract  not 
required  to  be  sealed,  the  seal  may  be  disregarded;  and  in 
such  case,  if  the  contract  is  made  in  the  name  of  the  agent, 
parol  evidence  would  be  admissible,  as  in  the  case  of  ordinary 
contracts  in  writing,  to  charge  the  real  principal  or  to  en- 
able him  to  sue.81  But  the  decisions  are  conflicting.82 

Negotiable  Instrument. 

Although  bills  of  exchange,  promissory  notes,  and  oth- 
er negotiable  instruments  are  classed  as  simple  contracts, 
they  partake  in  many  respects  of  the  nature  of  specialties.83 
It  is  the  rule  of  the  law  merchant  that  no  one  who  is  not 

*s  Schack  v.  Anthony,  1  M.  &  S.  573;  Berkeley  v.  Hardy,  8  D.  &  R. 
102;  Machesney  v.  Brown  (C.  C.)  29  Fed.  145;  Guyon  v.  Lewis,  7 
Wend.  (N.  Y.)  26;  Stone  v.  Wood,  7  Cow.  (N.  Y.)  453;  Kiersted  v. 
Orange,  69  N.  Y.  343,  25  Am.  Rep.  199;  El  well  v.  Shaw,  16  Mass.  42, 
8  Am.  Dec.  126;  Fullam  v.  Inhabitants  of  West  Brookfleld,  9  Allen 
(Mass.)  1. 

2»  Badger  Silver  Min.  Co.  v.  Drake,  31  C.  C.  A.  378,  88  Fed.  48; 
Briggs  v.  Partridge,  64  N.  Y.  357,  21  Am.  Rep.  617;  Tuthill  v.  Wil- 
son, 90  N.  Y.  423;  Henricus  v.  Englert,  137  N.  Y.  488,  33  N.  E.  550; 
Farrar  v.  Lee,  10  App.  Div.  130,  41  N.  Y.  Supp.  672;  Borcherling  v. 
Katz,  37  N.  J.  Eq.  150;  Haley  v.  Belting  Co.,  140  Mass.  73,  2  N.  E. 
785;  Sanger  v.  Warren,  91  Tex.  472,  44  S.  W.  477,  66  Am.  St.  Rep. 
913  (the  rule  not  changed  by  statute  providing  that  no  seal  is  neces- 
sary to  validity  of  any  instrument  in  writing,  and  that  addition  or 
omission  of  seal  shall  not  affect  the  same). 

«o  Post,  p.  330. 

«i  Lancaster  v.  Ice  Co.,  153  Pa.  427,  26  Atl.  251;  Stowell  v.  Eldred, 
89  Wis.  614.  See,  also,  Blanchard  v.  Inhabitants  of  Blackstone,  102 
Mass.  343;  Cook  v.  Gray,  133  Mass.  106. 

sz  An  undisclosed  principal  cannot  sue  on  a  sealed  contract,  exe- 
cuted by  the  agent  as  such,  though  the  seal  is  not  essential  to  its 
validity.  Smith  v.  Pierce,  45  App.  Div.  628,  60  N.  Y.  Supp.  1011. 

»»  2  Ames,  Cas.  B.  &  N.  872. 


§§  52-56)      LIABILITY  OP  UNDISCLOSED   PRINCIPAL.  245 

named  in  or  described  as  a  party  to  the  instrument  can  main- 
tain an  action  34  or  be  charged  upon  it.85  Parol  evidence  to 
show  who  is  the  real  principal  is  inadmissible.  If,  therefore, 
a  bill  or  a  note  is  made  by  an  agent,  the  principal  must  ap- 
pear thereon  to  be  a  party,  or  he  will  not  be  bound.  The 
doctrine  of  undisclosed  principal  does  not  extend  to  such 
instruments.  If  the  signature  be  "C.  D.,"  although  he  was  in 
fact  the  agent  of  "A.  B.,"  evidence  is  not  admissible  to  show 
that  he  intended  to  bind  A.  B.  And  even  if,  under  the  same 
circumstances,  the  signature  was  written  "C.  D.,  Agent,"  the 
name  of  the  principal  being  undisclosed,  the  word  "Agent" 
is  to  be  regarded  as  descriptio  personae,  and  C.  D.  only  is 
bound.88  There  are,  indeed,  many  conflicting  decisions  re- 
garding the  construction  of  such  instruments,  and  the  ques- 
tions what  form  is  sufficient  to  bind  the  principal,  and  what 
to  bind  the  agent,  and  under  what  circumstances,  if  at  all, 
parol  evidence  is  admissible  to  solve  an  ambiguity,  will  be 
considered  later.8* 


»«  Post,  p.  808. 

»8  Laffkin  v.  Walker,  2  Camp.  308;  In  re  Ansonla  Co.,  L.  R.  9  Ch. 
635;  Pentz  v.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558;  Stack- 
pole  v.  Arnold,  11  Mass.  27,  6  Am.  Dec.  150;  Williams  v.  Bobbins,  Id 
Gray  (Mass.)  77,  77  Am.  Dec.  396;  Arnold  v.  Sprague,  34  Vt.  409: 
Pease  v.  Pease,  35  Conn.  131,  95  Am.  Dec.  225;  Cragin  v.  Lovell,  109 
U.  S.  194,  3  Sup.  Ct  132,  27  L.  Ed.  903. 

But  if  the  name  of  the  principal  is  not  disclosed,  and  the  seller 
does  not  rely  exclusively  upon  the  credit  of  the  agent,  he  may,  upon 
the  dishonor  of  the  paper,  charge  the  principal  for  goods  sold  and  de- 
livered. Pentz  v.  Stanton,  supra.  See,  also,  Harper  v.  Bank,  54 
Ohio  St.  425,  44  N.  E.  97. 

3«  Pentz  v.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558;  Wil- 
liams v.  Bobbins,  16  Gray  (Mass.)  77,  77  Am.  Dec.  396;  Anderton  v. 
Shoup,  17  Ohio  St.  125;  Anderson  v.  Pearce,  36  Ark.  293,  38  Am. 
Bep.  39;  Stinson  v.  Lee,  68  Miss.  113,  8  South.  272,  9  L.  B.  A.  830. 
24  Am.  St.  Bep.  257;  Cortland  Wagon  Co.  v.  Lynch,  82  Hun,  173,  31 
N.  Y.  Supp.  325. 

«  Post,  p.  332. 


246  LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON.  (Gh.  9 

Foreign  Principal. 

In  England,  no  foreign  principal  may  sue  or  be  sued  on  a 
contract  made  by  his  agent  in  that  country,  unless  it  is  proved 
that  the  agent  was  authorized  to  make  the  principal  a  con- 
tracting party,  and  it  appears,  either  from  the  terms  of  the 
contract  or  from  the  surrounding  circumstances,  that  the 
principal,  and  not  the  agent,  was  intended  to  be  the  con- 
tracting party.88  For  this  reason  it  seems  that  an  undis- 
closed foreign  principal  cannot  sue  or  be  sued.  In  the  United 
States  there  is  no  presumption  that  the  agent  of  a  foreign 
principal  is  exclusively  liable,89  and  apparently  an  undis- 
closed foreign  principal  can  sue  or  be  charged  upon  the  con- 
tract. 

•s  Bowstead,  Dig.  Ag.  art  87;  post,  p.  365.  ••  Post,  p.  866L 


jjjj  57-58)     ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.  247 

CHAPTER  X. 

ADMISSIONS  BY  AGENT— NOTICE  TO  AGENT. 

57.  Admissions  by  Agent— When  Competent. 

58.  Incompetent  to  Prove  Authority. 

69.    Notice  to  Agent— Imputed  Notice— Notice  in  Course  of  Employ- 
ment. 

60.  Knowledge  Acquired  in  Other  Transaction. 

61.  General  Exception— Adverse  Interest  of  Agent. 

ADMISSIONS  BT  AGENT— WHEN  COMPETENT. 

57.  The  statement  of  an  agent  is  evidence  against  Ms  prin- 

cipal,   as    an    admission— 

(a)  When  it  -was  made  with  his  authority;    or 

(b)  When  it  was  made  by  the  agent  in  the  transaction  for 

his  principal  of  some  authorized  business,  to  which  it 
had  reference  and  with  -which  it  was  connected,  mo  a* 
to  be  a  part  of  that  transaction. 

SAME— INCOMPETENT  TO  PROVE  AUTHORITY. 

58.  The    statement   of  an  agent   is   not   evidence   against   his 

principal,  as  an  admission,  to  prove  the  existence  of 
the  agency  or  the  extent  of  the  authority. 

In  General. 

An  admission  is  a  statement,  or  an  act  which  amounts  to  a 
statement,  of  a  fact  material  to  the  issue  and  adverse  to  the 
interest  of  the  party  who  made  it.1  The  admission  of  a 
party  to  an  action  is  always  admissible  against  him,  and  con- 
sequently the  admission  of  his  agent,  if  made  under  such 
circumstances  that  he  must  be  deemed  to  be  speaking 
through  the  lips  of  his  agent,  is  also  admissible  against  him. 
Admissions  by  agents  must  be  distinguished  from  statements 
by  agents  which  are  themselves  the  very  facts  to  be  proved. 
"What  the  agent  has  said  may  be  what  constitutes  the  agree- 

§§  57-58.     i  McKelvey,  Ev.  90. 


248  ADMISSIONS  BY  AGENT NOTICE  TO  AGENT.  (Ch.  10 

ment  of  the  principal :  or  the  representations  or  statements 
made  may  be  the  foundation  of,  or  the  inducement  to,  the 
agreement.  Therefore,  if  writing  is  not  necessary  by  law, 
evidence  must  be  admitted  to  prove  the  agent  did  make  that 
statement  or  representation."  2  An  admission,  however,  is 
merely  a  substitute  for  other  proof,  or  an  additional  means 
of  proving  the  fact  of  which  it  is  a  statement,  and  which 
may  be  otherwise  proved. 

Admission  by  Agent — When  Admissible  against  Principal. 

In  order  that  the  statement  of  an  agent  may  be  evidence 
against  the  principal  as  an  admission,  the  relation  of  principal 
and  agent  must  first  be  proved.  It  is  not  enough,  however, 
to  show  that  the  relation  existed  when  the  statement  was 
made.  It  must  appear  that  the  agent  was  acting  as  such  in 
making  the  statement.  Of  course,  if  it  could  be  shown  that 
the  speaker  had  authority  to  make  that  particular  statement, 
the  proof  would  be  sufficient.  And,  if  A.  refers  B.  to  C. 
for  information  upon  a  particular  matter,  C.'s  statements 
respecting  such  matter  are  evidence  against  A.,8  the  agency 
being  for  the  purpose  of  making  statements.  In  other  cases 
it  must  appear  that  the  statement  was  made  while  the  agent 
was  engaged  in  transacting  some  authorized  business  for 
his  principal,  and  had  reference  to,  and  was  connected  with, 
that  business,  so  as  to  be  a  part  of  the  pending  transac- 
tion.4 

2  Fairlie  v.  Hastings,  10  Ves.  Jr.  123. 

»  Williams  v.  limes,  1  Camp.  364;  Hood  y.  Reeve,  3  C.  &  P.  532; 
Burt  v.  Palmer,  5  Esp.  145;  Chapman  v.  Twitchell,  37  Me.  59,  58  Am. 
Dec.  773;  Chadsey  v.  Greene,  24  Conn.  562,  572;  Over  v.  Schiffling, 
102  Ind.  191,  26  N.  E.  91. 

It  must  appear  that  the  reference  was  for  that  purpose.  Proctor 
V.  Railroad  Co.,  154  Mass.  251,  28  N.  E.  13.  See  McKelvey,  Ev.  103. 

*  Fairlie  v.  Hastings,  10  Ves.  Jr.  123;  Garth  v.  Howard,  8  Bing. 
451;  United  States  v.  Gooding,  12  Wheat.  (U.  S.)  460,  6  L.  Ed.  693; 
Northwestern  Union  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528,  22 
L.  Ed.  406;  Fogg  v.  Pew,  10  Gray  (Mass.)  409,  71  Am.  Dec.  662; 
White  v.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13;  McPherrin  v.  Jen- 
nings, 66  Iowa,  622,  24  N.  W.  242. 


§§  57-58)  ADMISSIONS  BY  AGENT.  249 

It  is  commonly  said  that  the  statement  must  be  made  while 
the  agent  is  engaged  in  transacting  some  authorized  busi- 
ness, and  must  be  so  connected  with  it  as  to  constitute  part 
of  the  res  gestae.5  But  "the  Latin  phrase  adds  nothing;"  it 
is  used  here  as  an  equivalent  expression  for  the  business  on 
hand,  or  the  pending  transaction,  as  regards  which  for  cer- 
tain purposes  the  law  identifies  the  principal  and  the  agent.6 
The  use  of  "res  gestae"  in  this  connection  tends  to  confusion, 
by  reason  of  its  use  in  connection  with  declarations  which 
are  admissible  as  a  part  of  the  res  gestae;  meaning  thereby 
the  surrounding  circumstances  or  circumstantial  facts,  where 
no  question  of  agency  is  necessarily  involved.7 

Provided  the  requirement  that  the  statement  be  made  as 
part  of  a  pending  transaction,  as  explained,  be  fulfilled,  the 
nature  of  the  transaction  is  immaterial,  and  the  admission 
may  be  of  a  present  or  of  a  past  fact.  While  the  statement 
of  an  agent  in  negotiating  a  contract  may  constitute  the 
agreement  of  the  principal,  or  an  inducement  to  the  contract, 
and  thus  form  the  basis  of  an  action  upon  the  contract  or 
for  deceit,  a  statement  made  by  the  agent  in  the  negotiation 
in  regard  to  the  subject-matter  may  also  be  used  against  the 
principal  as  an  admission  in  an  action  not  based  upon  the 
contract  or  the  statement.8  Thus,  in  an  action  upon  a  state- 
ute  to  recover  a  penalty  for  selling  coals  short  measure,  it 
was  held  that  what  the  defendant's  agent,  who  made  the 
sale,  said  bearing  upon  that  issue,  in  respect  to  the  sale 
about  to  take  place  and  in  respect  to  the  coals  which  were 
the  subject  of  the  sale,  was  evidence  against  the  defend- 
ant.8 And  upon  an  indictment  against  the  owner  of  a  ves- 

•  United  States  v.  Gooding,  12  Wheat  (U.  S.)  460,  6  L.  Ed.  693; 
Northwestern  Union  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528,  22 
L.  Ed.  406;  White  v.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13. 

«  See  15  Am.  Law  Rev.  80. 

i  Thayer,  Cas.  on  Ev.  630;   McKelvey,  Ev.  280;   post,  p.  252. 
»  Peto  v.  Hague,  5  Esp.  134;  United  States  v.  Gooding,  12  Wheat 
(U.  S.)  460,  6  L.  Ed.  693. 

•  Peto  v.  Hagne,  5  Esp.  134. 


250  ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.          (Ch.  10 

sel  for  being  engaged  in  the  slave  trade,  the  appointment 
of  the  master  and  his  general  authority  as  such  having  been 
established,  and  evidence  to  show  the  nature  of  the  voyage 
and  the  defendant's  complicity  having  been  introduced,  it 
was  held  that  declarations  of  the  master,  made  when  at- 
tempting to  hire  the  witness  as  mate  for  the  voyage  then 
in  progress,  describing  the  same  to  be  a  voyage  to  the  coast 
of  Africa  for  slaves,  were  admissible  as  confirmatory  of  the 
proof  against  the  defendant.10 

The  question  of  the  agent's  power  to  bind  his  principal 
by  an  admission  is  usually  raised  when  the  statement  con- 
cerns a  past  fact.  An  agent,  as  such,  has  not  power  to 
made  admissions,  even  in  respect  to  a  transaction  in  which 
he  was  himself  concerned;11  yet  if,  in  the  course  of  his 
employment,  it  becomes  his  duty  or  he  has  authority  to  deal 
with  a  person  who  asserts,12  or  against  whom  his  principal 
asserts,18  rights  based  upon  a  past  transaction,  or  to  answer 

10  United  States  v.  Gooding,  12  Wheat  (U.  S.)  460,  6  L.  Ed.  693: 
"The  evidence  here  offered,"  said  Story,  J.,  "was  not  the  mere  decla- 
rations of  the  master  upon  other  occasions  totally  disconnected  with 
the  objects  of  the  voyage.     These  declarations  were  connected  with 
acts  in  furtherance  of  the  objects  of  the  voyage,  and  within  the  gen- 
eral scope  of  his  authority  as  conductor  of  the  enterprise.    He  had 
an  implied  authority  to  hire  a  crew.     *     *    * '  The  testimony  went 
to  establish  that  he  endeavored  to  engage  Captain  Coit  to  go  as  mate 
for  the  voyage  then  in  progress,  and  his  declarations  were  all  made 
with  reference  to  that  object.     *    *     *    They  were,  therefore,  in  the 
strictest  sense,  a  part  of  the  res  gestae — the  necessary  explanations 
attending  the  attempt  to  hire." 

11  White  v.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13;   Phelps  v.  James, 
86  Iowa,  398,  53  N.  W.  274,  41  Am.  St.  Rep.  497;   Idaho  Forwarding 
Co.  v.  Insurance  Co.,  8  Utah,  41,  29  Pac.  826,  17  L.  R.  A.  586.     See 
Luby  v.  Railroad  Co.,  17  N.  Y.  131,  and  other  cases  cited  note  32, 
infra. 

12  See  cases  cited  notes  16-18,  infra. 

is  Where  an  attorney  is  retained,  not  only  to  sue  a  railroad  com- 
pany for  damages  caused  by  an  accident,  but  also  to  present  the 
plaintiff's  claim  and  obtain  settlement  without  suit,  if  possible,  a 
letter  written  by  his  clerk,  under  his  directions,  to  the  company, 


§§  57-58)  ADMISSIONS  BT   AGENT.  251 

questions  14  or  to  make  statements  to  any  person  about  it/" 
what  he  then  says  while  acting  within  the  scope  of  his  au- 
thority concerning  it  is  evidence  against  his  principal.  On 
this  ground  the  acknowledgment  of  an  indebtedness  upon 
demand  for  payment  made  by  an  agent  who  is  the  proper  per- 
son from  whom  to  demand  payment  is  evidence  against  the 
principal  as  an  admission  of  the  debt,16  and  may  be  used 
against  him  to  take  the  case  out  of  the  statute  of  limita- 
tions.17 So,  in  an  action  against  a  railway  company  for  the 
loss  of  a  trunk,  the  declaration  of  the  company's  station 
master,  made  the  next  morning  after  the  loss  in  accounting 
for  the  trunk  to  the  plaintiff,  was  admissible;  it  being  part 
of  his  duty  to  deliver  the  baggage  of  passengers  and  to  ac- 
count for  the  same,  provided  inquiries  were  made  within  a 
reasonable  time.18  And  similarly  where  a  parcel  was  lost 
in  transit,  and  the  station  master,  in  the  ordinary  course  of 
his  duty,  made  a  statement  to  the  police  as  to  the  absconding 
of  a  porter  suspected  to  have  taken  it,  with  a  view  to  his 
apprehension,  the  statement  was  held  admissible  against  the 

stating  what  purported  to  be  the  facts  In  the  case,  In  response  to  an 
Inquiry  by  the  company,  is  admissible  in  evidence  for  the  company. 
Loomis  v.  Railroad  Co.,  159  Mass.  39,  34  N.  E.  82.  The  admission 
of  an  attorney  is  not  receivable  unless  made  with  reference  to  a  mat- 
ter in  which  be  had  authority  to  represent  his  client.  Fletcher  v. 
Railway  Co.,  109  Mich.  363,  67  N.  W.  330;  Pickert  v.  Hah-,  146  Mass. 
1,  15  N.  E.  79;  Treadway  v.  Railroad  Co.,  40  Iowa,  526. 

As  to  the  power  of  an  attorney  to  make  admissions  in  the  conduct 
of  a  suit,  Marsh  v.  Mitchell,  26  N.  J.  Eq.  497,  501;  Haas  v.  Society, 
80  111.  248;  Perry  v.  Manufacturing  Co.,  40  Conn.  313,  317;  McKel- 
vey,  Ev.  103.  See  ante,  p.  227. 

i*  Morse  v.  Railroad  Co.,  6  Gray  (Mass.)  450. 

10  Kirkstall  Brewery  Co.  v.  Furness  Ry.  Co.,  L.  R.  9  Q.  B.  468. 

i«  Clifford  v.  Burton,  1  Bing.  199  (offer  of  compromise  upon  appli- 
cation for  payment). 

IT  Anderson  v.  Sanderson,  2  Stark.  204;  Id.,  Holt,  N.  P.  591;  Burt 
v.  Palmer,  5  Esp.  145;  Palethorp  v.  Furnish,  2  Esp.  511,  note. 

is  Morse  v.  Railroad  Co.,  6  Gray  (Mass.)  450.  See,  also,  Lane  v. 
Railroad  Co.,  112  Mass.  455;  Burnside  v.  Railway  Co.,  47  N.  H.  554, 
93  Am.  Dec.  474. 


252  ADMISSIONS   BY  AGENT NOTICE  TO  AGENT.  (Ch.  10 

company  on  the  issue  whether  the  parcel  was  stolen  by  one 
of  its  servants.19  On  the  other  hand,  in  an  action  against  a 
railway  company  for  nondelivery  of  cattle  within  a  reasonable 
time,  the  statement  of  a  night  inspector  at  a  station,  through 
which  the  trucks  which  carried  the  cattle  would  pass,  made 
a  week  after  the  alleged  occurrence,  in  answer  to  a  question 
why  he  had  not  sent  on  the  cattle,  that  he  had  forgotten  them, 
was  held  inadmissible,  on  the  ground  that  he  had  not  au- 
thority to  make  admissions  relative  to  bygone  transac- 
tions.20 This  case  is  distinguishable  from  the  preceding  up- 
on the  ground  that  it  was  not  part  of  the  duty  of  the  night 
inspector  to  render  an  account  of  the  affair  to  the  plaintiff  in 
answer  to  his  inquiries.  So,  where  the  plaintiff  was  injured 
by  a  fall  from  the  gangway  while  attempting  to  go  on  board 
the  defendant's  steamboat,  and  afterwards  during  the  voyage 
the  captain  admitted  to  her  that  it  was  through  the  careless- 
ness of  the  hands  in  putting  out  the  plank  that  she  fell,  it 
was  held  error  to  permit  the  admission  to  be  received.21 

Same — Declarations,   When  Part  of  Res  Gestce. 

Every  act  or  event  is  set  about  by  surrounding  circum- 
stances, or  circumstantial  facts,  which  "may  consist  of  decla- 
rations made  at  the  time  by  participants  in  the  act,  or  other 
acts  done,  of  the  position,  condition,  and  appearance  of  in- 
animate objects,  and  of  other  elements  which  serve  to  illus- 
trate the  main  act  or  event."  22  Subject  to  not  very  well 
defined  limitations,  such  circumstances  may  be  proved  as 
part  of  the  thing  done — the  res  gesta,  or,  as  it  is  common- 
ly put,  the  res  gestse.  Such  declarations  comprise  state- 
ments, exclamations,  and  other  utterances  by  the  partici- 
pants in  the  act.  They  are  received  on  the  ground  of  their 
spontaneity.  "They  are  the  extempore  utterances  of  the 

i»  Kirkstall  Brewery  Co.  v.  Furness  Ry.  Co.,  L.  R.  9  Q.  B.  468. 
so  Great  Western  Ry.  v.  Willis,  38  C.  B.  (N.  S.)  748. 
21  Northwestern  Union  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  52P, 
22  L.  Ed.  406. 

*z  McKelvey,  Ev.  277. 


§§  57-58)  ADMISSIONS  BY  AGENT.  253 

mind  under  circumstances  and  at  times  when  there  has  been 
no  sufficient  opportunity  to  plan  false  or  misleading  state- 
ments; they  exhibit  the  mind's  impressions  of  immediate 
events,  and  are  not  narrative  of  past  happenings."  *'  Such 
declarations  constitute  an  exception  to  the  hearsay  rule. 
To  be  admissible,  they  must  be  made  while  the  act  is  be- 
ing done  or  the  event  happening,  or  so  soon  thereafter 
that  the  mind  of  the  declarant  is  actively  influenced  by  it. 
The  cases  are  not  in  accord  as  to  the  extent  of  the  time 
which  the  res  gestae  cover;  and,  indeed,  the  time  necessarily 
depends  more  or  less  upon  the  circumstances  of  each  case. 
The  question  always  is  whether  the  declaration  is  a  sponta- 
neous utterance  or  the  mere  narrative  of  a  past  act.  When 
such  declarations  are  admitted,  they  are  generally  made  with- 
in a  few  minutes  of  the  act  or  event  to  which  they  relate.24 

The  application  of  this  rule,  or  rather  exception  to  the 
hearsay  rule,  frequently  arises  in  accident  cases,  where  the 
declaration  of  the  person  whose  act  caused  the  injury  is 
sought  to  be  introduced  as  tending  to  show  his  negligence 
or  otherwise  throwing  light  upon  the  nature  of  the  act. 
Where  one  of  the  participants  in  the  act  is  a  servant  or  agent, 
there  appears  no  reason  for  applying  a  different  rule  to  his 
declaration,  if  part  of  the  res  gestae,  than  to  the  declaration 
of  any  other  person.  If  an  act  which  causes  injury  to  a  third 
person,  the  plaintiff,  is  committed  by  a  servant  of  the  de- 
fendant, in  the  course  of  his  employment,  so  as  to  be  in  law 
the  act  of  the  defendant,  the  act,  with  all  its  surrounding  cir- 
cumstances, or  res  gestae,  may  be  proved,  and  the  declaration 
of  any  servant  who  participated  in  the  act,  if  part  of  the  res 
gestae,  is  admissible  against  the  defendant.28  The  admissi- 

»s  McKelvey,  Ev.  278. 

2*  Travelers'  Ins.  Co.  v.  Mosley,  8  Wall.  (U.  S.)  397,  19  L.  Ed.  437; 
Vlcksburg  &  M.  R.  Co.  v.  O'Brien,  119  U.  S.  99,  7  Sup.  Ct  118,  30  L. 
Ed.  299;  Lund  v.  Inhabitants  of  Tyngsborough,  9  Cush.  (Mass.)  36, 
42;  Earle  v.  Earle,  11  Allen  (Mass.)  1;  Waldele  v.  Railroad  Co.,  95 
N.  Y.  274,  47  Am.  Rep.  41;  Rockwell  v.  Taylor,  41  Conii.  55,  59. 

*»  Hanover  R.  Co.  v.  Coyle,  55  Pa.  396;    Obio  &  M.  Ry.  Co.  v. 


254  ADMISSIONS  BY  AGENT NOTICE  TO  AGENT.          (Ch.  10 

bih'ty  of  the  declaration,  although  made  by  a  servant,  does 
not  depend  upon  his  power  to  bind  his  master  by  his  ad- 
missions, but  upon  its  being  part  of  the  res  gestae.  If  a 
declaration  is  admissible  as  part  of  the  res  gestae,  it  is  com- 
petent, no  matter  by  whom  made.26  Upon  the  same  ground 
a  declaration  of  the  party  injured  may  be  admissible  in  his 
own  favor.27 


Stein,  133  Ind.  243,  31  N.  E.  180,  32  N.  B.  831,  19  L.  R.  A.  733; 
Cleveland  v.  Newsom,  45  Mich.  62,  7  N.  W.  222;  Keyser  v.  Railway 
Co.,  66  Mich.  390,  33  N.  W.  867;  O'Connor  v.  Railway  Co.,  27  Minn. 
166,  6  N.  W.  481,  38  Am.  Rep.  288;  Hermes  v.  Railway  Co.,  80  Wis. 
590,  50  N.  W.  584,  27  Am.  St.  Rep.  69;  Hooker  v.  Railway  Co.,  76 
Wis.  542,  44  N.  W.  1085;  Marion  v.  Railway  Co.,  64  Iowa,  568,  21  N. 
W.  86;  Omaha  &  R.  V.  Ry.  Co.  v.  Chollette,  41  Neb.  578,  59  N.  W. 
921;  Elledge  v.  Railway  Co.,  100  Cal.  282,  34  Pac.  720,  38  Am.  St. 
Rep.  290;  Lightcap  v.  Traction  Co.  (C.  C.)  60  Fed.  212. 

The  declaration  must,  of  course,  characterize  the  act  Ohio  &  M. 
Ry.  Co.  v.  Stein,  supra;  Butler  v.  Railway  Co.,  143  N.  Y.  417,  38  N. 
E.  454,  26  L.  R.  A.  46,  42  Am.  St.  Rep.  738. 

26  in  an  action  by  an  administrator  against  a  railway  company  to 
recover  damages  for  decedent's  death,  declarations  of  decedent,  which 
were  made  immediately  after  he  was  injured  and  while  he  was  being 
extricated  from  under  the  wheels  of  the  car,  were  admissible,  against 
defendant,  as  part  of  the  res  gestse.    Louisville,  N.  A.  &  C.  Ry.  Co. 
v.  Buck,  116  Ind.  566,  19  N.  E.  453,  2  L.  R.  A.  520,  9  Am.  St.  Rep. 
883. 

Where  a  brakeman  on  a  flat  car  received  an  injury  in  a  collision 
between  such  car  and  a  detached  portion  of  the  train  while  making  a 
running  switch,  and  two  minutes  after,  while  he  was  still  on  the  car, 
the  engineer  walked  a  car  length  from  the  engine  to  where  the 
brakeman  was,  declarations  by  the  engineer  as  to  the  cause  of  the 
accident,  which  did  not  refer  to  acts  done  or  matters  happening  be- 
fore the  collision,  were  admissible  against  the  company  as  part  of 
the  res  gestse.  "Counsel  argue,"  said  Elliott,  C.  J.,  "*  *  *  that 
the  declarations  admitted  in  that  case  [Louisville,  N.  A.  &  C.  Ry.  Co. 
v.  Buck,  supra]  were  those  of  the  injured  person,  while  the  declara- 
tions admitted  in  this  instance  were  those  of  the  agent  or  servant. 
A  complete  and  effective  answer  to  this  argument  is  that,  if  the 
declarations  were  *  *  *  part  of  the  res  gestse,  they  were  com- 
petent, no  matter  by  whom  they  were  made."  Ohio  &  M.  Ry.  Co.  v. 
Stein,  133  Ind.  243,  31  N.  E.  180,  32  N.  E.  831,  19  L.  R.  A.  733. 

27  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Buck,  116  Ind.  566,  19  N.  E. 


§§  57-58)  ADMISSIONS  BY   AGENT.  255 

It  must  be  conceded  that  the  admissibility  of  declara- 
tions of  servants  and  agents  whose  admissibility  rests  upon 
the  ground  that  they  are  part  of  the  res  gestae,  in  its 
proper  sense,  is  often  treated  as  depending  upon  the  power 
of  an  agent  to  bind  his  principal  by  his  admissions.  "Where 
the  acts  of  the  agent  will  bind  the  principal,"  it  is  said, 
"there  his  representations,  declarations,  and  admissions,  re- 
specting the  subject-matter,  will  also  bind  him,  if  made  at  the 
same  time,  and  constituting  a  part  of  the  res  gestae."  "  It 
is  believed,  however,  that  a  distinction  should  be  drawn.*9 
On  the  one  hand,  declarations  made  at  the  time  of  the  act  by 
the  parties  participating  therein,  and  part  of  the  res  gestae — 
that  is,  of  the  surrounding  circumstances — are  admissible,  ir- 
respective of  whether  the  participants  are  servants  of  the 
person  sought  to  be  held  responsible  for  the  act,  and  by 
whomsoever  made.  On  the  other  hand,  the  statement  of  a 
servant  or  agent  is  admissible  as  an  admission,  if  it  is  made 
when  he  is  engaged  in  some  authorized  transaction,  and  it  is 
within  the  scope  of  his  authority  in  that  transaction  to  make 
the  statement.  To  illustrate:  In  an  action  against  a  rail- 
way company,  by  a  person  injured  by  a  collision,  the  dec- 
laration of  the  engineer,  referring  directly  to  and  characteriz- 
ing or  explaining  the  occurrence,  made  at  the  time  or  im- 
mediately afterwards,  under  its  immediate  influence,  may, 
under  the  circumstances  of  the  case,  be  held  part  of  the  res 
gestae,  and  admissible  against  the  company  upon  that 
ground.30  It  might  be,  however,  that  some  subsequent  state- 
ment of  the  engineer,  as  to  the  cause  of  the  accident,  although 
not  part  of  the  res  gestae,  would  be  evidence  against  the  com- 
pany as  an  admission ;  as,  for  example,  if  it  happened  to  be 

453,  2  L.  R.  A.  520,  9  Am.  St.  Rep.  883.  Of.  Travelers'  Ins.  Co.  v. 
Mosley,  8  Wall.  (U.  S.)  397,  19  L.  Ed.  437. 

zs  story,  Ag.  §  134,  frequently  quoted  in  this  connection.  See  cases 
cited,  note  25,  supra. 

2»  See  Thayer,  Cas.  on  Ev.  630;   McKelvey,  Ev.  280. 

so  Ohio  &  M.  Ry.  Co.  v.  Stein,  133  Ind.  243,  31  N.  E.  180,  32  N.  E. 
831,  19  L.  R.  A.  733. 


256  ADMISSIONS  BY  AGENT NOTICE  TO  AGENT.          (Ch.  10 

made  by  him  in  the  course  of  his  duty  in  making  a  report 
of  the  accident  to  a  superior  officer.81  In  the  one  case  the 
declaration  of  the  engineer  is  admissible  as  a  circumstantial 
fact,  as  part  of  the  res  gestae,  because  it  is  the  spontaneous 
utterance  of  a  participant  in  the  event.  In  the  other  case  his 
statement  is  admissible  against  the  company  as  an  admission, 
because  it  is  made  at  a  time  and  under  circumstances  when 
the  engineer  has  authority  to  make  it.  If  the  statement  is 
not  admissible  either  as  a  declaration  forming  part  of  the 
res  gestae,  or  as  an  admission,  it  cannot  be  received.88 

Admission  Incompetent  to  Prove  Agency. 

It  follows  from  what  has  been  said  that  neither  the  exist- 
ence of  the  agency  nor  its  extent  can  be  proved  by  the  ad- 
mission of  the  agent.88  His  power  to  make  admissions  rests 
upon  the  very  fact  that  he  is  agent,  and  has  authority  to 

«i  Texas  &  P.  Ry.  Co.  v.  Lester,  75  Tex.  56,  12  S.  W.  955.  See, 
also,  Keyset  v.  Railway  Co.,  66  Mich.  390,  33  N.  W.  867;  St.  Louis 

6  S.  F.  Ry.  Co.  v.  Weaver,  35  Kan.  412,  11  Pac.  408,  57  Am.  Rep. 
176;    Meyer  v.  Insurance  Co.,  104  Cal.  381,  38  Pac.  82.    Cf.  North 
Hudson  Co.  R.  Co.  v.  May,  48  N.  J.  Law,  401,  5  Atl.  276. 

It  has  been  held  that  letters  of  an  agent  to  his  principal,  In  which 
he  renders  an  account  of  his  transactions,  are  not  admissible,  as 
being  mere  narration.  Langhorn  v.  Alluutt,  4  Taunt.  511;  and  see 
Re  Davila,  22  Ch.  D.  593;  United  States  v.  The  Burdett,  9  Pet. 
(U.  S.)  682,  689,  9  L.  Ed.  273.  Contra,  The  Soloway,  10  Prob.  D.  137, 
54  L.  J.  P.  83. 

82  gee  Luby  v.  Railroad  Co.,  17  N.  Y.  131;  Lane  v.  Bryant,  9  Gray 
(Mass.)  245,  69  Am.  Dec.  282;  Williamson  v.  Railroad  Co.,  144  Mass. 
148,  10  N.  E.  790;  Vicksburg  &  M.  R.  Co.  v.  O'Brien,  119  U.  S.  99, 

7  Sup.  Ct.  118,  30  L.  Ed.  299;   Durkee  v.  Railroad  Co.,  69  Cal.  533, 
11  Pac.  130,  58  Am.  Rep.  562. 

as  Brigham  v.  Peters,  1  Gray  (Mass.)  139;  Mussey  v.  Beecher,  3 
Gush.  (Mass.)  511;  Hatch  v.  Squires,  11  Mich.  185;  Sencerbox  v.  Mc- 
Grade,  6  Minn.  484  (Gil.  334);  Sax  v.  Davis,  71  Iowa,  406,  32  N.  W. 
403;  Howe  Mach.  Co.  v.  Clark,  15  Kan.  492;  Bohanan  v.  Railroad, 
70  N.  H.  526,  49  Atl.  103. 

Admissions  of  an  agent  are  not  evidence  without  proof  of  agency, 
but  the  former  may  be  admitted  before  proof  of  the  latter.  First 
Unitarian  See.  v.  Faulkner,  91  U.  S.  415,  23  L.  Ed.  283. 


§§  59-61)  NOTICE  TO  AGENT.  257 

make  the  statement  which  constitutes  the  admission.  To 
receive  his  statement  as  an  admission  of  that  authority  would 
be  to  proceed  in  a  circle.  He  is,  however,  competent  as 
witness  to  testify  to  the  fact  and  terms  of  his  appointment, 
if  it  was  not  conferred  by  writing.84  Neither  is  it  competent 
to  prove  the  extent  of  his  authority  by  his  acts  when  the 
effect  of  such  proof  would  be  only  to  show  his  assertion  of 
the  powers  assumed.85  Such  proof  is  inadmissible  except 
to  show  a  course  of  dealing  acquiesced  in  by  the  principal, 
from  which  authority  to  do  other  similar  acts  might  be  im- 
plied, or  as  the  foundation  for  an  estoppel.86 

NOTICE     TO     AGENT— IMPUTED     NOTICE— NOTICE     IN 
COURSE  OF  EMPLOYMENT. 

59.  When,   in   the    course    of   his    employment,    the    agent    ac- 

quires knowledge,  or  receives  notice,  of  any  fact  n»a- 
terial  to  the  business  in  which  he  is  employed,  the 
principal  is  deemed  (snbject  to  the  exception  stated  in 
section  61)  to  have  notice  of  snch  fact. 

SAME— KNOWLEDGE    ACQUIRED    IN    OTHER    TRANSAC- 
TION. 

60.  Different    rules    prevail    in    different    jurisdictions    as    to 

whether  the  doctrine  of  imputed  notice  extends  to 
knowledge  acquired  by  the  agent  while  acting  in  a 
different  transaction: 

(a)  In  some  jurisdictions,  the  rule  of  imputed  notice  is 
strictly  confined  to  facts  of  which  the  agent  acquires 
knowledge,  or  receives  notice,  in  the  particular  trans- 
action in  which  he  is  then  employed. 

»«  Gould  v.  Lead  Co.,  9  Cush.  (Mass.)  338,  57  Am.  Dec.  50;  Thayer 
y.  Meeker,  86  111.  470;  Howe  Mach.  Co.  v.  Clark,  15  Kan.  492;  Rob- 
erts v.  Insurance  Co.,  90  Wis.  210,  62  N.  W.  1049  (though  agent  Is 
husband  of  principal). 

SB  Graves  v.  Horton,  38  Minn.  66,  35  N.  \V.  568;  Leu  v.  Mayer,  82 
Kan.  419,  34  Pac.  969. 

««  Ante,  pp.  36,  37,  174. 
TIFF.P.&  A 17 


258  ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.          (Ch.  10 

(b)  In  most  jurisdictions,  the  rule  prevails  that  knowledge 
of  a  fact  material  to  the  business  in  which  the  agent 
is  employed,  if  actually  present  in  his  mind  during  the 
agency  and  while  acting  on  the  principal's  behalf, 
although  acquired  by  him  in  another  transaction  and 
•while  acting  for  another  principal,  is  deemed  (subject 
to  the  exception  stated  in  section  61)  notice  to  the 
principal,  provided  that  it  would  not  be  a  breach  of 
the  agent'*  duty  to  his  former  principal  to  disclose 
the  fact. 

SAME— GENERAL    EXCEPTION— ADVERSE    INTEREST    OF 

AGENT. 

61.  The  knowledge  of  the  agent  will  not  be  imputed  to  the 
principal,  when  the  agent  is  engaged  in  committing  an 
independent  fraudulent  act  upon  his  own.  account,  and 
the  knowledge  sought  to  be  imputed  is  of  facts  -which 
relate  to  that  act,  and  which  it  would  be  against  his 
interest  to  disclose. 

In  General. 

In  business  dealings  the  rights  and  obligations  of  one  per- 
son may  be  affected  by  the  knowledge  or  notice  which  he 
may  have  of  the  adverse  rights  or  equities  of  persons  other 
than  the  one  with  whom  he  deals,  or  of  other  facts  which, 
because  known  to  him,  give  a  different  character  to  his  act. 
And,  if  he  deals  through  an  agent,  his  rights  and  obligations 
are,  as  a  rule,  equally  affected  by  knowledge  or  notice  of 
any  such  matter  which  comes  to  the  agent  in  the  course  of 
the  business  in  which  he  is  employed.  Notice  to  the  agent 
is  notice  to  the  principal,  if  it  is  acquired  in  the  very  trans- 
action in  which  he  is  then  employed.1  It  is  commonly  said 

§§  59-61.  i  Le  Neve  v.  Le  Neve,  1  Ves.  Sr.  64;  Sheldon  v.  Cox, 
Ambl.  624;  Hiern  v.  Mill,  13  Ves.  120;  The  Distilled  Spirits,  11  Wall. 
(U.  S.)  35G,  20  L.  Ed.  167;  Suit  v.  Woodhall,  113  Mass.  391;  MaComb 
v.  Wilkinson,  83  Mich.  486,  47  N.  W.  336. 

Where  the  agent  of  an  insurance  company  negotiated  a  contract 
of  insurance  with  a  man  who  had  lost  an  eye,  the  company  was 
affected  with  the  agent's  knowledge  of  the  fact,  and  could  not  avoid 


§§  59-61)  NOTICE   TO   AGENT.  259 

that  the  general  rule  that  a  principal  is  bound  by  the  knowl- 
edge of  his  agent  is  based  on  the  principle  that  it  is  the 
agent's  duty  to  communicate  the  knowledge  which  he  has 
respecting  the  subject-matter  of  the  agency,  and  the  pre- 
sumption that  he  will  do  his  duty ;  *  but  this  reason,  like 
many  others  assigned  for  the  identification  of  principal  and 
agent,  is  somewhat  artificial.*  Within  certain  limits,  it  is 
reasonable  and  just  to  impute  the  knowledge  of  the  agent 
to  the  principal,  and  to  the  extent  of  imputing  notice  of  what 
the  agent  learns  or  receives  notice  of  in  the  same  transaction 
the  courts  are  agreed.*  If  the  agent  fails  to  complete  the 
transaction,  and  it  is  taken  up  and  completed  by  a  second 
agent,  notice  of  a  material  fact,  which  comes  to  the  knowl- 
edge of  the  first  agent  while  acting  for  the  principal,  will 
not  be  imputed  to  him.* 

Notice  Acquired  in  Different  Transaction. 

Whether  the  doctrine  of  imputed  notice  may  be  extended 
to  knowledge  acquired  by  the  agent  in  a  previous  or  dif- 

tbe  contract  on  account  of  its  nondisclosure  by  the  assured.  Bawden 
v.  London,  E.  &  G.  Assur.  Co.  [1892]  2  Q.  B.  534. 

See,  generally,  cases  cited  pp.  260,  261, 

*  The  Distilled  Spirits,  11  WalL  (U.  S.)  356,  20  L.  Ed,  167. 

»  Post  P.  2G4,  note  23. 

«  Otherwise  it  would  be  possible  to  avoid  the  possibility  of  notice 
by  employing  an  agent.  Sheldon  v.  Cor,  Ambl.  624. 

»  Irvine  v.  Grady,  85  Tex.  120,  19  S.  W.  1028;  Blackburn  T.  Vigors. 
12  App.  Cas.  531.  Cf.  Blackburn  v.  Haslam,  21  Q.  B.  D.  144. 

"By  some  it  is  held  that  the  rule  rests  upon  the  principle  of  the 
legal  identity  of  the  principal  and  agent  By  others  it  is  placed  upon 
the  ground  that  when  a  principal  has  consummated  a  transaction  in 
whole  or  in  part,  through  an  agent  it  is  contrary  to  equity  and  good 
conscience  that  he  should  be  permitted  to  avail  himself  of  the  bene- 
fits of  his  agent's  participation  without  becoming  responsible  as  well 
for  his  agent's  knowledge  as  for  his  agent's  acts.  •  •  •  The  lat- 
ter, in  our  opinion,  is  the  more  reasonable  and  equitable  foundation 
for  the  rule,  and  gives  it  a  more  salutary  operation.  Such  being,  in 
our  opinion,  the  proper  ground,  *  *  *  we  think  the  knowledge 
of  Moore  should  not  be  imputed  to  Irvine."  Per  Gaines,  J.,  in  Irvine 
T.  Grady,  supra. 


260  ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.          (Ch.  10 

ferent  transaction  is  a  question  upon  which  there  is  a  con- 
flict of  authority. 

(a)  By  the  earlier  view,  which  formerly  prevailed  in  Eng- 
land,6 and  which  still  prevails  in  some  jurisdictions  in  this 
country,7  it  was  held  that  the  rule  could  not  be  extended  so 
far  as  to  affect  the  principal  by  knowledge  acquired  by  the 
agent  in  another  transaction  and  at  another  time.    The  agent 
"cannot  stand  in  the  place  of  the  principal,"  it  was  saftl, 
"until  the  relation  of  principal  and  agent  is  constituted,  and 
as  to  all  information  previously  acquired  the  principal  is  a 
mere  stra'nger."  8     "Notice  to  him  [the  agent]  twenty-four 
hours  before  the  relation  commenced  is  no  more  notice  than 
twenty-four  hours  after  it  had  ceased  would  be."  9 

(b)  At  an  early  day  the  extreme  technicality  of  the  then 
prevailing  view  was  recognized,  and  Lord  Eldon  declared  that 
he  should  be  unwilling  to  say  "that  if  an  attorney  has  notice 
of  a  transaction  in  the  morning  he  shall  be  held  in  a  court 
of  equity  to  have  forgotten  it  in  the  evening;   it  must  in  all 
cases  depend  upon  the  circumstances."  10     In  England  the 
view  seems  now  to  be  established  that  knowledge  of  an  agent 
acquired  previous  to  the  agency,  but  actually  present  in  his 
mind  during  the  agency  and  while  acting  for  his  principal, 
and  material  to  the  business  delegated,  will,  as  respects  such 
transaction  or  matter,  be  deemed  notice  to  the  principal.11 
This  view  has  been  approved  by  the  Supreme  Court  of  the 
United  States,12  and  is  the  view  more  generally  prevailing.13 

•  Warrick  v.   Warrick,   3   Atk.   291;    Worsley   v.   Earl   of   Scar- 
borough, 3  Atk.  392.    See  Fuller  v.  Bennett,  2  Hare,  294. 

7  Houseman  v.  Association,  81  Pa.  256;  Barbour  v.  Wienie,  116  Pa. 
308,  9  Atl.  520;  McCormick  v.  Joseph,  83  Ala.  401,  3  South.  796; 
Texas  Loan  Agency  v.  Taylor,  88  Tex.  47,  29  S.  W.  1057. 

•  Mountford  v.  Scott,  3  Mad.  34,  per  Leach,  V.  C. 

•  Houseman  v.  Association,  81  Pa.  256. 

10  Per  Lord  Eldon  in  Mountford  v.  Scott,  1  Turn.  &  R.  274. 

11  Dresser  v.  Norwood,  17  C.  B.  (N.  S.)  466. 

12  The  Distilled  Spirits  Case,  11  Wall.  (U.  S.)  356,  20  L.  Ed.  167. 

is  Falrfield  Sav.  Bank  v.  Chase,  72  Me.  226,  39  Am.  Rep.  319; 
Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631,  2  L.  R.  A.  734, 


§§  59-61)  NOTICE  TO  AGENT.  261 

It  must  be  established  by  the  person  asserting  notice  that  the 
knowledge  was  present  in  the  agent's  mind,14  although  the 
burden  would  doubtless  be  sustained  in  any  case  if  the  in- 
formation had  been  acquired  so  recently  as  to  make  it  in- 
credible that  he  should  have  forgotten  it.15 

Where  the  agency  is  continuous,  and  is  concerned  with  a 
business  made  up  of  a  long  series  of  transactions,  as  where 
the  agent  is  the  cashier  of  a  bank,  or  otherwise  placed  in 
constant  management  and  control  of  his  principal's  business, 
it  seems  that  knowledge  acquired  or  notice  received  by  the 
agent  during  the  course  of  the  agency,  although  not  ac- 
quired or  received  in  the  particular  transaction  which  may  be 
in  question,  will  be  imputed  to  the  principal  without  proof 
that  the  agent  retained  it  in  his  memory.16  It  is  important 
to  remember  that  knowledge  acquired  by  the  agent  in  an- 
other transaction  is  not,  like  notice  acquired  in  the  same 
transaction,  to  be  imputed  to  the  principal  as  matter  of  law; 

7  Am.  St.  Rep.  769;  Scyder  v.  Partridge,  138  111.  173,  29  N.  E.  851, 
32  Am.  St.  Rep.  130;  Union  Bank  v.  Campbell,  4  Humph.  (Tenn.) 
398;  Lebanon  Sav.  Bank  v.  Hollenbeck,  29  Minn.  322,  13  N.  W.  145; 
Wilson  v.  Association,  36  Minn.  112,  30  N.  W.  401,  1  Am.  St  Rep. 
659;  Shafer  v.  Insurance  Co.,  53  Wis.  361,  10  N.  W.  381;  Chouteau 
v.  Allen,  70  Mo.  290;  Pennoyer  v.  Willis,  26  Or.  1,  36  Pac.  568,  46 
Am.  St  Rep.  594;  Westerman  v.  Evans,  1  Kan.  App.  1,  41  Pac.  675; 
Chicago,  St.  P.,  M.  &  O.  R.  Co.  v.  Belliwith,  28  C.  C.  A.  358,  83  Fed. 
437;  Schwind  v.  Boyce,  94  Md.  510,  51  Atl.  45. 

i*  Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631,  2  L.  R.  A. 
734,  7  Am.  St.  Rep.  769;  Burton  v.  Perry,  146  111.  71,  34  N.  E.  60; 
Yerger  v.  Barz,  56  Iowa,  77,  8  N.  W.  769;  Equitable  Securities  Co.  v. 
Sheppard,  78  Miss.  217,  28  South.  217;  Gregg  v.  Baldwin,  9  N.  D. 
515,  84  N.  W.  373. 

is  The  Distilled  Spirits  Case,  11  Wall.  (U.  S.)  356,  20  L.  Ed.  167; 
Chouteau  v.  Allen,  70  Mo.  290;  Brothers  v.  Bank,  84  Wis.  381,  54  N. 
W.  786,  36  Am.  St.  Rep.  932;  Foote  v.  Bank,  17  Utah,  283,  54  Pac. 
104. 

i«  It  has  been  so  held  when  the  principal  is  a  corporation.  Holden 
v.  Bank,  72  N.  Y.  286;  Cragie  v.  Hadley,  99  N.  Y.  131,  1  N.  E.  537, 
52  Am.  Rep.  9;  Brothers  v.  Bank,  84  Wis.  381,  54  N.  W.  786,  36  Am. 
St  Rep.  932. 


262         ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.    (Ch.  10 

that  is,  irrespective  of  whether  the  agent  actually  had  it  in 
mind  while  engaged  in  the  pending  transaction.  It  is  upon 
this  ground  that  it  is  held,  even  in  jurisdictions  which  extend 
the  rule  of  imputed  notice  to  knowledge  acquired  in  other 
transactions,  that  the  principal  is  not  legally  chargeable  with 
such  knowledge.17  It  must  in  each  case  depend  upon  the 
circumstances. 

One  exception  to  this  rule  is  to  be  noted.  Notice  will  not 
be  imputed  to  the  principal  if  the  fact  of  which  the  agent 
has  knowledge  was  acquired  by  the  agent  confidentially  as 
agent  for  another  principal,  under  such  circumstances  that  it 
would  be  a  betrayal  of  professional  confidence  and  a  breach 
of  his  duty  to  the  other  principal  to  disclose  it.18 

Notice  must  fie  of  Matter  within  Scope  of  Agency. 

The  danger  of  extending  the  rule  of  imputed  notice  has 
always  been  recognized.  It  was  this  consideration  that  made 
the  courts  averse  to  extending  it  to  knowledge  acquired  in 
another  transaction;  for,  it  was  urged,  the  man  of  greatest 
practice  and  greatest  eminence  will  then  be  most  dangerous 
to  employ.18  The  rule,  even  if  it  be  so  extended,  subject  to 
the  limitations  mentioned,  applies  only  to  knowledge  of  facts 
which  are  material  in  the  business  for  which  the  agent  is  em- 
ployed. To  affect  the  principal  with  notice,  the  matter  known 
to  the  agent  must  be  something  within  the  scope  of  his 
agency;  that  is,  in  reference  to  which  he  has  authority  to 
act  or  which  it  is  his  duty  in  the  capacity  in  which  he  is  em- 
ployed to  communicate.20  "As  it  is  the  rule  that  whether 

IT  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Parsons,  47  Minn.  352,  50  N. 
W.  240;  Union  Nat.  Bank  v.  Insurance  Co.,  18  C.  C.  A.  203,  71  Fed. 
473. 

is  The  Distilled  Spirits  Case,  11  Wall.  (U.  S.)  356,  20  L.  Ed.  167; 
Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631,  2  L.  R.  A.  734,  7 
Am.  St.  Rep.  769. 

i»  Worsley  v.  Earl  of  Scarborough,  3  Atk.  392. 

20  Wylie  v.  Pollen,  32  L.  J.  Ch.  782;  Tate  v.  Hyslop,  15  Q.  B.  D. 
368;  Trentor  v.  Pothen,  46  Minn.  298,  49  N.  W.  129,  24  Am.  St.  Rep. 
225;  Strauch  v.  May,  80  Minn.  343,  83  N.  W.  156;  Hickman  v.  Green, 


§§  59-61)  NOTICE  TO  AGENT.  263 

the  principal  is  bound  by  the  contracts  entered  into  by  the 
agent  depends  upon  the  nature  and  extent  of  the  agency,  so 
does  the  effect  upon  the  principal  of  notice  to  the  agent 
depend  upon  the  same  conditions.  Hence,  in  order  to  deter- 
mine whether  the  knowledge  of  the  agent  should  be  im- 
puted to  the  principal,  it  becomes  of  primary  importance 
to  ascertain  the  exact  extent  and  scope  of  the  agency."  " 

General  Exception — Disclosure  against  Interest. 

The  principal  is  not  bound  by  the  knowledge  of  his  agent 
when  it  would  be  against  the  agent's  interest  to  inform  him 
of  the  facts.  Therefore,  if  the  agent  is  engaged  in  perpe- 
trating an  independent  fraud  on  his  own  account,  knowledge 
of  facts  relating  to  the  fraud  will  not  be  imputed  to  the  prin- 
cipal.22 The  principal  is  not  bound,  it  is  said,  when  the  char- 
acter and  nature  of  the  agent's  knowledge  make  it  intrinsic- 

123  Mo.  165,  22  S.  W.  455.  27  S.  W.  440,  29  L.  R.  A.  39;  Pennoyer 
v.  Willis,  26  Or.  1,  36  Pac.  568,  46  Am.  St.  Rep.  594;  American 
Surety  Co.  v.  Pauly,  170  U.  S.  133,  18  Sup.  Ct  553,  42  L.  Ed.  977; 
Bohanan  v.  Railroad  Co.,  70  N.  H.  526,  49  Atl.  103. 

"Where  the  employment  of  the  agent  is  such  that  in  respect  to  the 
particular  matter  in  question  he  really  does  represent  the  principal, 
the  formula  that  the  knowledge  of  the  agent  is  his  knowledge  is  cor- 
rect" Per  Lord  Halsbury  in  Blackburn  v.  Vigors,  12  App.  Cas.  531, 
537. 

21  Trentor  v.  Pothen,  46  Minn.  298,  49  N.  W.  129,  24  Am.  St.  Rep. 
225. 

In  this  case  it  was  held  that  when  an  attorney  was  employed  to 
examine  an  abstract  of  title,  and  to  give  an  opinion  as  to  the  suffi- 
ciency of  the  title,  it  was  not  within  the  scope  of  the  agency  to  go 
beyond  the  record  evidences  of  title,  and  that  consequently  the  client 
was  not  charged  with  notice  of  an  adverse  claim  not  disclosed  by  the 
record,  which  had  come  to  the  knowledge  of  the  attorney  while  en- 
gaged in  another  transaction  for  another  client. 

22  Cave  v.  Cave,  15  Ch.  D.  639;    American  Surety  Co.  v.  Pauly, 
170  U.  S.  133,  18  Sup.  Ct.  552,  42  L.  Ed.  977;    Thompson-Houston 
Electric  Co.  v.  Electric  Co.,  12  C.  C.  A.  643,  65  Fed.  341;  Dillaway  v. 
Butler,  135  Mass.  479;  Innerarity  v.  Bank,  139  Mass.  332,  1  N.  E.  282, 
52  Am.  Rep.  710;  Allen  v.  Railroad  Co.,  150  Mass.  200,  22  N.  E.  917, 
5  L.  R.  A.  716,  15  Am.  St.  Rep.  185;  National  Life  Ins.  Co.  v.  Minch, 


264  ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.          (Ch.  10 

ally  improbable  that  he  will  inform  his  principal.  Whether 
the  rule  or  the  exception  rest  upon  a  presumption  that  the 
agent  will  or  will  not  communicate  the  facts  to  his  principal 
may  be  doubted.28  Whatever  the  reasons  for  the  exception, 
it  is  well  established.  Of  course,  if  the  agent  is  openly  acting 
adversely  to  his  principal,  his  knowledge  will  not  be  imputed 
to  the  latter.24  In  such  case  he  is  not  acting  as  agent,  but 
on  his  own  behalf. 

53  N.  Y.  144;  Henry  v.  Allen,  151  N.  T.  1,  45  N.  B.  355,  36  L.  R.  A. 
658;  Hickman  v.  Green,  123  Mo.  165,  22  S.  W.  455,  27  S.  W.  440, 
29  L.  R.  A.  39;  Benton  v.  Manufacturing  Co.,  73  Minn.  498,  76  N.  W. 
265;  Cole  v.  Getzinger,  96  Wis.  559,  71  N.  W.  75. 

A  person  cannot  be  held  as  a  conspirator  because  his  agent  has 
knowledge  of,  or  has  participated  in,  a  conspiracy.  Benton  v.  Manu- 
facturing Co.,  supra. 

Actual  malice  is  not  to  be  imputed  because  of  the  knowledge  of 
another  person,  however  related.  Reisan  v.  Mott,  42  Minn.  49,  43  N. 
W.  691,  18  Am.  St.  Rep.  489. 

23  "it  may  be  doubted  whether  the  rule  and  the  exception  rest  on 
any  such  reasons.  It  has  been  suggested  that  the  true  reason  for 
the  exception  is  that  an  independent  fraud  committed  by  the  agent 
on  his  own  account  is  beyond  the  scope  of  his  employment,  and  there- 
fore knowledge  of  it,  as  matter  of  law,  cannot  be  imputed  to  the  prin- 
cipal, and  the  principal  cannot  be  held  responsible  for  it  On  this 
view,  such  a  fraud  bears  some  analogy  to  a  tort  willfully  committed 
by  a  servant  for  his  own  purposes,  and  not  as  a  means  of  perform- 
ing the  business  intrusted  to  him  by  his  master."  Per  Field,  3.,  in 
Allen  v.  Railroad  Co.,  150  Mass.  200,  22  N.  E.  917,  5  L.  R.  A.  716,  15 
Am.  St.  Rep.  185.  See,  also,  Henry  v.  Allen,  151  N.  Y.  1,  45  N.  E. 
355,  36  L.  R.  A.  658. 

a*  Third  Nat  Bank  v.  Harrison  (C.  C.)  10  Fed.  243;  Corcoran  v. 
Cattle  Co.,  151  Mass.  74,  23  N.  E.  727;  First  Nat.  Bank  v.  Babbidge, 
160  Mass.  563,  36  N.  E.  462;  Frenkel  v.  Hudson,  82  Ala.  158,  2  South. 
758,  60  Am.  Rep.  736;  Wickersham  v.  Zinc  Co.,  18  Kan.  481,  26  Am. 
Rep.  784. 

The  fact  that  an  agent  also  acts  as  agent  for  the  party  adversely 
interested  in  the  transaction  does  not  prevent  his  principal  from  be- 
ing bound  by  notice  to  or  knowledge  acquired  by  such  agent  where 
the  principal  consents  to  such  adverse  agency.— Pine  Mountain  Iron  & 
Coal  Co.  v.  Bailey,  36  C.  C.  A.  229,  94  Fed.  258. 


§§  59-61)  NOTICE  TO  AGENT.  265 

Not/ice  to  Svbagent. 

If  an  agent  has  authority  to  employ  a  subagent,  it  seems 
that  the  same  principles  must  apply  as  to  the  notice  to  be 
imputed  to  the  principal  as  in  cases  of  agents  appointed  by 
him  directly,  and  that  notice  to  the  subagent  of  any  fact 
material  to  the  business  which  he  is  authorized  to  transact 
is  notice  to  the  principal.26  This  rule  is  frequently  applied 
in  cases  of  subagents  appointed  by  insurance  agents.26  Nor 
would  it  seem  to  be  material,  so  long  as  the  agent  had  au- 
thority to  appoint  the  subagent,  whether  privity  of  contract 
existed  between  him  and  the  principal.27  If  the  principal 
is  bound  by  his  act,  he  should  also  be  charged  by  his  knowl- 
edge. It  has  been  held,  however,  by  the  Supreme  Court  of 
the  United  States,  that  where  a  creditor  placed  an  account 
in  the  hands  of  a  collecting  agency,  with  instructions  to  col- 
lect, and  the  agency  sent  the  claim  to  an  attorney  at  the  place 
of  residence  of  the  debtor,  who  persuaded  him  to  confess 
judgment,  the  attorney  was  the  agent  of  the  collecting  agency, 
and  not  of  the  creditor,  and  that  his  knowledge  of  the  in- 
solvency of  the  debtor,  who  was  soon  after  adjudged  a  bank- 
rupt, was  not  chargeable  to  the  creditor,  so  as  to  render  the 
judgment  a  preference.28  The  decision  was  placed  upon  the 

a »  Boyd  v.  Vanderkemp,  1  Barb.  Ch.  273. 

20  Arff  v.  Insurance  Co.,  125  N.  Y.  57,  25  N.  E.  1073,  10  L.  R.  A. 
609,  21  Am.  St.  Rep.  721;  Carpenter  v.  Insurance  Co.,  135  N.  Y.  298. 
31  N.  E.  1015;  Union  Cent  Life  Ins.  Co.  v.  Smith,  105  Mich.  353.  63 
N.  W.  438. 

27  Ante,  p.  123. 

28  Hoover  v.  Wise,  91  U.  S.  308,  23  L.  Ed.  392:    "Neither  can  it  be 
doubted  that,  where  an  agent  has  power  to  employ  a  subagent,  the 
acts  of  the  subagent,  or  notice  given  to  him  in  the  transaction  of  the 
business,  have  the  same  effect  as  if  done  or  received  by  the  principal. 

*  *     *     For  the  acts  of  a  subagent  the  principal  is  liable,  but 

*  *    *    for  the  acts  of  the  agent  of  an  intermediate  independent 
employer  he  is  not  liable.    It  is  difficult  to  lay  down  a  precise  rule 
which  will  define  the  distinctions  arising  in  such  cases.     The  appli- 
cation of  the  rule  is  full  of  embarrassment.    *    *    *    Such  attorney 


266  ADMISSIONS  BY  AGENT — NOTICE  TO  AGENT.          (Ch.  10 

ground  that  the  attorney  was  the  agent  of  an  intermediate, 
independent  contractor.  Three  members  of  the  court  dis- 
sented, holding  that  the  attorney  was  the  creditor's  agent.29 

Notice  to  Officer  of  Corporation. 

The  foregoing  rules  apply  equally  to  officers  and  other 
agents  of  corporations.  Indeed,  many  of '  the  cases  which 
have  been  here  cited  in  their  support  are  cases  in  which  notice 
was  imputed  to  a  corporation.  When  the  officer  in  question 
is  a  director,  it  must  be  remembered  that  the  directors  of  a 
corporation  have  power  to  bind  it  only  when  acting  as  a 
board.80  It  follows  that  notice  to  a  director,  or  knowledge 
acquired  or  possessed  by  him  individually,  and  not  while  act- 
ing in  his  official  capacity,  as  a  member  of  the  board,  is  not 
to  be  imputed  to  the  corporation.81  But  if  when  so  acting 

Is  the  agent  of  the  collection  agent,  and  not  of  the  creditor  who  em- 
ployed that  ageut."  Opinion  of  the  court,  per  Hunt,  J. 

29  "The  attorney  *  *  *  acted  for  them  [the  creditors],  and  was 
compelled  to  use  their  name.  *  *  *  I  am  at  a  loss  to  see  how 
their  liability  is  changed  by  the  fact  that  the  notes  were  sent  to 
him  through  a  commercial  or  collecting  agency.  This  agency  had  no 
interest  in  the  notes;  was  not  liable  to  the  attorney  for  his  fees. 
*  *  *  The  notes  were  not  indorsed  to  this  agency,  nor  could  it  in 
any  manner  have  prevented  Wise  &  Co.  from  controlling  all  the  pro- 
ceedings of  the  attorney  for  collecting  of  the  money.  *  *  .  * 
The  effect  of  this  decision  is  that  a  nonresident  creditor,  by  sending 
his  claim  to  a  lawyer  through  some  indirect  agency,  may  secure  all 
the  advantages  of  priority  and  preference  which  the  attorney  can 
obtain  of  the  debtor,  well  knowing  his  insolvency,  without  any  re- 
sponsibility under  the  bankrupt  law."  Per  Miller,  J.,  dissenting,  in 
Hoover  v.  Wise,  91  TJ.  S.  308,  23  L.  Ed.  392.  See  comments  on  this 
case  in  Bates  v.  Mortgage  Co.,  37  S.  C.  88,  16  S.  E.  883,  21  L.  R.  A. 
340. 

so  Clark,  Corp.  488,  502. 

3i  Bank  of  United  States  v.  Davis,  2  Hill  (N.  Y.)  451;  Buttrick  v. 
Railroad  Co.,  62  H.  H.  413,  13  Am.  St.  Rep.  578;  Farmers'  &  Citi- 
zens' Bank  v.  Payne,  25  Conn.  444,  68  Am.  Dec.  362;  Farrel  Foundry 
v.  Dart,  26  Conn.  376;  New  Haven,  M.  &  W.  R.  Co.  v.  Town  of  Chat- 
ham, 42  Conn.  465. 

Otherwise  if  communicated  to  him  as  director  for  the  purpose  of 


§§  59-61)  NOTICE  TO  AGENT.  267 

he  has  actual  knowledge  of  some  fact  material  to  the  busi- 
ness in  hand,  the  corporation  will  be  affected,  subject  to 
the  exceptions  which  apply  to  other  agents,  with  notice.82 
Notice  to  a  stockholder  is  not  notice  to  the  corporation.83 

being  communicated  to  the  board.  United  States  Ins.  Oo.  'v.  Shriver, 
3  Md.  Ch.  381;  National  Bank  v.  Norton,  1  Hill  (N.  Y.)  572  (semble). 

•2  National  Security  Bank  v.  Cushman,  121  Mass.  490;  Innerarity 
v.  Bank,  139  Mass.  332,  1  N.  B.  282,  52  Am.  Rep.  710;  Bank  of 
United  States  v.  Davis,  2  Hill  (N.  Y.)  451. 

«»  Housatonlc  Bank  v.  Martin,  1  Mete.  (Mass.)  294. 


268  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 


CHAPTER  XI. 

LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON— TORTS  AND 

CRIMES. 

62.  Liability  for  Torts— Act  Commanded  OP  Ratified. 

63.  Liability  of  Master  for  Tort  of  Servant 

64.  Liability  of  Principal  for  Tort  of  Agent— In  General. 

65.  Fraud. 

66.  Fraud  not  for  Principal's  Benefit— Estoppel. 

67.  Liability  for  Crimes. 

TORTS— ACT  COMMANDED  OR  RATIFIED. 

62.   A  person  is  liable  for  a  tort  committed  by  another  pur- 
suant to  his  command,  or  which  he  has  duly  ratified. 

In   General. 

Whoever  commits  a  wrong  is  liable  for  it;  and  it  is  im- 
material whether  the  act  be  done  by  him  in  person  or  by 
another  acting  under  his  command.1  Qui  facit  per  alium 
facit  per  se.  And  if  a  wrong  results  as  a  natural  consequence 
of  an  act  commanded,  the  person  who  commanded  the  act 
is  answerable  not  less  than  if  he  had  commanded  the  wrong.2 
Moreover,  a  person  may  become  liable  by  ratification  for  a 
wrongful  act  committed  without  authority  on  his  behalf.8 
The  liability  of  one  person  for  wrongs  committed  by  another, 
however,  is  not  confined  to  cases  where  logically  the  wrong 
can  be  deemed  a  result  of  his  command  or  authority.  A 
person  may  be  liable  as  principal  for  wrongs  which  he  has 
not  authorized  because  he  stands  to  the  actual  wrongdoer 

§  62.  i  State  v.  Smith,  78  Me.  260,  4  Atl.  412,  57  Am.  Rep.  802 
(and  cases  cited);  Herring  v.  Hoppock,  15  N.  Y.  409;  Moir  v.  Hop- 
kins, 16  111.  313,  63  Am.  Dec.  312;  Maier  v.  Randolph,  33  Kan.  340, 
6  Pac.  625. 

2  Gregory  v.  Piper,  9  B.  &  C.  591;  Jaggard,  Torts,  245-247. 

»  Dempsey  v.  Chambers,  154  Mass.  330,  28  N.  E.  279,  13  L.  R.  A. 
219,  26  Am.  St.  Rep.  249;  ante,  p.  47. 


§  63)         LIABILITY   OF   MASTER   FOR  SERVANT'S  TORT.  269 

in  a  relation  which  makes  him  so  answerable.  Such  a  lia- 
bility seldom  arises  unless  the  relation  is  that  of  master  and 
servant,  but  it  arises  also,  though  less  frequently,  when  the 
relation  is  that  of  principal  and  agent  in  the  narrow  sense. 

LIABILITY   OF   MASTER   FOR    SERVANT'S   TORT. 

63.  The  master  in  liable  for  the  tort  of  his  servant  committed 
when  acting  within  the  course  of  the  employment  and 
in  furtherance  of  it. 

Liability  of  Master  for  Tort  of  Servant. 

The  master  is  liable  for  the  tort  of  his  servant  committed 
by  him  when  acting  within  the  course  of  the  employment, 
and  in  furtherance  of  it,  or,  as  it  is  often  put,  for  his  master's 
benefit,  although  he  did  not  authorize,  and  even  if  he  ex- 
pressly forbade,  the  wrongful  act.1 

As  we  have  seen,*  the  relation  of  master  and  servant  exists 
only  between  persons  one  of  whom  employs  the  other  to 
perform  services  subject  to  the  employer's  direction  and 
control.  "A  master  is  one  who  not  only  prescribes  to  the 
workman  the  end  of  his  work,  but  directs,  or  at  any  moment 
may  direct,  the  end  also,  or,  as  it  has  been  put,  retains  the 
power  of  controlling  the  work;  and  he  who  does  work  on 
those  terms  is  in  law  a  servant  for  whose  acts,  neglects,  and 
defaults,  to  the  extent  to  be  specified,  the  master  is  lia- 
ble." 8  On  the  other  hand,  if  the  person  employed  is  one 
who  undertakes  to  produce  a  given  result,  and  the  employer 
does  not  retain  the  right  to  order  and  control  the  manner 

§  63.  i  Limpus  v.  General  Omnibus  Co..  1  H.  &  C.  526;  Barwick 
v.  English  Joint-Stock  Bank,  L.  R.  2  Ex.  259;  and  cases  cited  post, 
pp.  270-274.  See  Pollock  (Webb's)  Torts,  88-111,  followed  generally 
in  this  section;  Jaggard,  Torts,  239-280. 

*  Ante,  p.  a 

»  Pollock  (Webb's)  Torts,  92.  See  Sadler  v.  Henlock,  4  E.  &  B. 
570;  Quarman  v.  Burnett,  6  M.  &  W.  499;  Murphy  v.  Caralli,  3  H. 
&  C.  462;  Murray  v.  Currle,  L.  R.  6  C.  P.  24:  Lawrence  v.  Shiprnan, 
39  Conn.  586;  ginger  Mfg.  Co.  v.  Rahn,  132  U.  S.  518,  10  Sup.  Ct 
175,  33  L.  Ed.  440;  Wood  v.  Cobb,  13  Allen  (Mass.)  58. 


270  LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

in  which  the  work  shall  be  done,  the  person  is  not  a  servant, 
but  an  independent  contractor,  for  whose  acts,  neglects,  and 
defaults  in  the  course  of  the  employment  the  employer  is  not 
ordinarily  responsible.4  The  employer,  nevertheless,  re- 
mains answerable  for  what  he  has  caused  to  be  done,  and 
if  the  result  to  be  accomplished  by  the  independent  con- 
tractor is  an  unlawful  act,  as  a  trespass  or  a  nuisance,  or  is 
likely  to  be  attended  with  injurious  consequences,  he  is  not 
less  liable  than  if  he  had  acted  in  person ;  nor  can  the  em- 
ployer escape  liability  if  in  the  performance  of  the  work 
the  contractor  fails  to.  conform  to  a  standard  of  duty  which 
is  required  of  the  employer  absolutely,  by  law  or  contract; 
and,  if  the  employer  fails  to  use  due  care  in  the  selection  of 
a  competent  contractor,  he  is,  perhaps,  answerable  for  the 
latter's  negligence.5 

The  distinction,  already  drawn,  between  a  servant  and  an 
agent  should  be  borne  in  mind.  For  the  purposes  of  this 
discussion,  a  servant  may  be  defined  as  a  person  employed 
to  render  to  his  employer,  subject  to  his  direction  and  con- 
trol, services  which  are  not  of  a  nature  to  create  new  legal  re- 
lations between  the  employer  and  third  persons.6 

Same — Course  of  Employment. 

A  servant  is  acting  in  the  course  of  his  employment  when 
he  is  engaged  in  that  which  he  was  employed  to  do  and  is 
at  the  time  about  his  master's  business.  He  is  not  acting  in 
the  course  of  his  employment  if  he  is  engaged  in  some  pur- 
suit of  his  own.  Not  every  deviation  from  the  strict  exe- 
cution of  his  duty  is  such  an  interruption  of  the  course  of 
employment  as  to  suspend  the  master's  responsibility;  but, 
if  there  is  a  total  departure  from  the  course  of  the  master's 
business,  the  master  is  no  longer  answerable  for  the  servant's 
conduct.7  Thus  a  servant  employed  to  drive  a  delivery  wag- 

*  See  cases  cited  in  preceding  note. 

B  Jaggard,  Torts,  231-238.  «  Ante,  p.  5. 

i  Mitchell  v.  Crasweller,  13  O.  B.  237;  Joel  v.  Morison,  6  C.  &  P. 
501;  Story  v.  Ashton,  L.  R.  4  Q.  B.  476;  Aycrigg  v.  Railroad  Co.,  30 
N.  J.  Law,  460-  •?**>»«  v.  Hills.  45  Conn.  44,  29  Am.  Rep.  635. 


§  63)         LIABILITY   OF  MASTER  FOR  SERVANT'S  TORT.  271 

on  does  not  necessarily  cease  to  be  acting  in  the  course 
of  his  employment  because  to  suit  his  own  convenience  he 
takes  a  roundabout  way;  but  if  he  starts  upon  an  entirely 
new  journey,  whether  at  the  beginning  or  end  or  middle  of 
his  proper  duty,  on  his  own  account,  he  is  no  longer  in  the 
course  of  his  employment.  The  question  is  one  of  fact.8 
"In  determining  whether  a  particular  act  is  done  in  the 
course  of  the  servant's  employment,  it  is  proper  to  in- 
quire whether  the  servant  was  at  the  time  engaged  in  serving 
his  master.  If  the  act  be  done  while  the  servant  is  at  liberty 
from  the  service,  and  pursuing  his  own  ends  exclusively,  the 
master  is  not  responsible.  If  the  servant  was,  at  the  time 
when  the  injury  was  inflicted,  acting  for  himself,  and  as  his 
own  master,  pro  tempore,  the  master  is  not  liable.  If  the 
servant  steps  aside  from  his  master's  business,  for  however 
short  a  time,  to  do  an  act  not  connected  with  such  business, 
the  relation  of  master  and  servant  is  for  the  time  suspend- 
ed." *  The  act  is  done  in  furtherance  of  the  employment, 
or  for  the  master's  benefit,  if  it  is  done  with  a  view  to  the 
furtherance  of  his  business.10 

Same — Furtherance  of  Employment. 

The  wrongful  act  for  which  the  master  is  answerable  may 
be  due  (i)  to  the  servant's  negligence,  or  (2)  it  may  consist 
in  excessive  or  mistaken  execution  of  his  authority,  or  (3) 
it  may  be  a  willful  wrong. 

(i)  Where  the  wrong  results  from  the  servant's  want  of 
care  in  doing  an  act  in  the  course  of  his  employment,  the  act 

•  Bums  v.  Poulson,  L.  R.  8  G.  P.  563;  Stevens  v.  Woodward,  6  Q. 
B.  318;  Staples  v.  Schmid,  18  R.  I.  224,  26  Atl.  193,  19  L.  R.  A.  824; 
Ritchie  v.  Waller,  63  Conn.  155,  28  Atl.  29,  27  L.  R.  A.  161,  38  Am. 
St.  Rep.  361. 

»  Per  Mitchell,  J.,  in  Morier  v.  Railway  Co.,  31  Minn.  351,  17  N.  W. 
952,  47  Am.  Rep.  793. 

10  Limpus  v.  General  Omnibus  Co.,  1  H.  &  C.  526;  Bowler  v. 
O'Connell,  162  Mass.  319,  38  N.  E.  498,  27  L,  R.  A.  173,  44  Am.  St 
Rep.  359,  and  cases  there  cited;  Illinois  Cent  R.  Co.  T.  Latham,  72 
Miss.  32,  16  South.  757. 


272  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

itself,  being  one  which  if  properly  performed  would  be  in 
furtherance  of  the  master's  business,  the  requirement  that 
the  act  must  be  in  furtherance  of  the  employment  is  ful- 
filled.11 And,  even  if  the  negligence  consists  in  mere  omis- 
sion to  do  an  act  which  it  is  the  duty  of  the  servant  in  the 
course  of  his  employment  to  do,  the  master  is  answerable.12 
(2)  Where  the  wrongful  act  consists  in  excessive  or  mis- 
taken execution  of  the  servant's  authority,  the  master  is  lia- 
ble, provided  the  act,  if  done  properly  or  under  the  circum- 
stances erroneously  supposed  by  the  servant  to  exist,  would 
have  been  lawful,  and  provided,  also,  the  servant  intended  to 
do  on  behalf  of  his  master  an  act  which  he  was  in  fact  au- 
thorized to  do.18  For  example,  where  a  train  servant  who 
has  authority  to  remove  disorderly  passengers,  under  mis- 
apprehension that  a  passenger  is  disorderly,  removes  him, 
and  in  so  doing  uses  excessive  force,  the  master  is  answer- 
able. By  giving  the  servant  authority  to  remove  disorderly 
passengers,  the  master  necessarily  gives  him  authority  to 
determine  whether  the  passenger  is  disorderly,  and  the  serv- 
ant is  hence  acting. in  the  course  of  employment;  and  since 
the  servant  intends  to  do  an  act  which  he  is  authorized  to 
do,  notwithstanding  that  he  uses  excessive  violence,  he  is 
acting  in  furtherance  of  the  master's  business.14  So,  where 
a  servant,  having  authority  for  the  protection  of  his  mas- 
ter's interests  to  arrest  persons  attempting  a  theft,  unlaw- 
fully arrests  a  supposed  offender  on  his  master's  behalf,  the 

11  Burns  v.  Poulson,  L.  R.  8  C.  P.  563;    Sleath  v.  Wilson,  9  0.  P. 
607;   Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How.  (U.  S.)  468,  14  L. 
Ed.  502;    Weed  v.   Railroad  Co.,   17  N.  Y.  362,  72  Am.   Dec.   474; 
Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep.  400;    Phelon  v.  Stiles, 
43  Conn.  426. 

12  Chapman  v.  Railroad  Co.,  33  N.  Y.  369,  88  Am.  Dec.  392. 

is  Pollock  (Webb's)  Torts,  101;  Bayley  v.  Manchester,  S.  &  L.  Ry., 
L.  R.  8  C.  P.  148. 

i*  Seymour  v.  Greenwood,  6  H.  &  N.  359,  7  H.  &  N.  355;  Higgins 
v.  Railroad  Co.,  46  N.  Y.  23,  7  Am.  Rep.  293;  Rounds  v.  Railroad  Co., 
64  N.  Y.  129,  21  Am.  Rep.  597. 


§  63)         LIABILITY   OF  MASTER  FOB   SERVANT'S  TORT.  273 

master  is  liable  although  in  the  performance  of  his  supposed 
duty  the  servant  mistakes  the  occasion  for  it,  or  exceeds  his 
powers,  or  employs  excessive  force.18 

(3)  Where  the  wrong  committed  by  the  servant  is  willful 
and  deliberate,  the  master  is  nevertheless  liable,  provided  the 
act  is  committed  in  the  course  of  the  employment  and  for 
the  master's  purposes,  and  not  merely  for  the  servant's  pri- 
vate ends ;  and  this,  as  in  other  cases,  although  the  servant's 
conduct  is  of  a  kind  actually  forbidden.1'  Thus,  where  an 
omnibus  driver  obstructed  a  rival  omnibus  by  pulling  across 
the  road  in  front  of  it,  and  caused  it  to  upset,  it  was  held 
proper  to  instruct  the  jury  that  if  he  acted  in  the  way  of 
his  employment,  and  in  the  supposed  interest  of  his  employer, 
as  against  a  rival  in  the  business,  although  needlessly,  wan- 
tonly, and  improperly,  the  master  was  answerable  for  his  con- 
duct, and  this  notwithstanding  that  he  had  been  instructed 
not  to  race  with  or  obstruct  rival  omnibuses,  but  that  if  the 
true  character  of  his  act  was  that  it  was  an  act  of  his  own, 
and  in  order  to  effect  a  purpose  of  his  own,  the  master  was 
not  responsible.17  "A  master  is  responsible  for  the  torts  of 
his  servant  done  with  a  view  to  the  furtherance  of  the  mas- 
ter's business,  whether  the  same  be  done  negligently  or  will- 
fully, but  within  the  scope  of  his  agency.  The  fact  that  the 
servant,  in  committing  the  tort,  may  have  exceeded  his  actual 

«  Staples  v.  Schmid,  18  R.  I.  224.  26  Atl.  193,  19  L.  R,  A.  824; 
Palmeri  v.  Railway  Co.,  133  N.  T.  261,  30  N.  E.  1001,  16  L.  R.  A. 
136,  28  Am.  St  Rep.  632:  Smith  v.  Munch,  65  Minn.  256,  68  N.  W.  19. 
Of.  Gobb  v.  Great  Northern  Ry.,  3  E.  &  E.  672;  Poulton  v.  London 
&  S.  W.  Ry.  Co.,  L.  R.  2  Q.  B.  534;  Central  Ry.  Co.  v.  Brewer,  78  Md. 
394,  28  Atl.  615,  27  L.  R.  A.  63;  Mulligan  v.  Railway  Co.,  129  N.  Y. 
500,  29  N.  E.  952,  14  L.  R,  A.  791,  20  Am.  St.  Rep.  5£9. 

is  Limpus  v.  General  Omnibus  Co.,  1  H.  &  C.  526;  Seymour  v. 
Greenwood,  6  H.  &  X.  359;  Howe  v.  Newmarch,  12  Allen  (Mass.)  49; 
Wallace  v.  Express  Co.,  134  Mass.  95,  45  Am.  Rep.  301;  Rounds  v. 
Railroad  Co.,  64  N.  Y.  129,  21  Am.  Rep.  597;  Texas  &  P.  R,  Co.  T. 
Scoville,  10  C.  C.  A.  479,  62  Fed.  730,  27  L.  R.  A.  179. 

«  Limpus  v.  General  Omnibus  Co.,  1  H.  &  C.  526. 
TIFF.P.&  A— 18 


274  LIABILITY  OF  PRINCIPAL  TO   THIRD  PERSON.  (Ch.  11 

authority,  or  even  disobeyed  his  express  instructions,  does 
not  alter  the  rule."  18 

Only  the  general  rule  has  been  stated.  A  fuller  statement 
of  the  master's  liability  would  show  that  it  is  even  broader 
under  some  circumstances,  as  where  he  owes  a  peculiar  duty 
to  the  person  injured,19  or  intrusts  his  servant  with  dangerous 
instrumentalities.80  This  rule  is  subject  to  an  important  ex- 
ception, where  the  person  injured  is  a  fellow  servant  of  the 
tort  feasor.21  It  is  beyond  the  scope  of  this  book  to  follow 
the  rule  into  its  manifold  applications  in  the  field  of  master 
and  servant. 

Same —  Ground  of  Liability. 

It  is  manifest  that  this  rule  differs  essentially  from  that 
governing  the  liability  of  the  principal  for  his  agent's  con- 
tract. In  that  case  the  third  person  is  dealing  with  the  agent, 
and  is  bound  at  his  peril  to  ascertain  the  extent  of  his  au- 
thority, and  if  he  fails  to  do  so  takes  the  risk  of  the  con- 
tract not  falling  within  the  agent's  powers,  real  or  appar- 
ent.22 The  power  of  the  servant  to  subject  his  master  to 
liability  for  tort  is  not  affected  by  any  knowledge  which  the 
third  person  may  have  of  the  extent  of  the  servant's  author- 
ity. He  is  not  dealing  with  the  servant.  It  is  enough  to 
give  him  a  right  of  action  that  he  is  injured  by  the  servant's 
act,  and  that  the  act  was  committed  while  the  latter  was  en- 
gaged in  what  he  was  employed  to  do  and  in  furtherance  of 
the  employment.  The  reason  for  the  master's  vicarious  lia- 
bility is  not  clear.28  The  commonly  accepted  explanation  is 
that  given  by  Chief  Justice  Shaw:  "This  rule  is  obviously 
founded  on  the  great  principle  of  social  duty,  that  every  man 
in  the  management  of  his  own  affairs,  whether  by  himself 
or  his  agents  or  servants,  shall  so  conduct  them  as  not  to 

is  per  Mitchell,  J.,  In  Smith  v.  Munch,  65  Minn.  256,  68  N.  W.  19. 

i»  Jaggard,  Torts,  261  et  seq. 

*°  Jaggard,  Torts,  264  et  seq. 

21. laggard,  Torts,  1029  et  seq. 

a  2  A.nte,  p.  180  et  seq.  2S  Ante,  p.  u. 


§§  Gi-66)        LIABILITY   OF  PRINCIPAL  FOR  TORT  OF  AGENT.        275 

injure  another;  and  if  he  does  not,  and  another  thereby  sus- 
tains damage,  he  shall  answer  for  it."  ** 

Whether  the  master  is  liable  for  exemplary  damages,  where 
the  wrongful  act  was  not  authorized  or  ratified,  is  a  question 
on  which  the  courts  disagree.  Some  courts  have  recognized 
the  fiction  of  identity  to  the  extent  of  holding  the  master 
liable ;  "  while  other  courts,  "more  impressed  by  the  mon- 
strosity of  the  result  than  by  the  elegantia  juris,  have  per- 
emptorily declared  that  it  was  absurd  to  punish  a  man  who 
had  not  been  to  blame,"  "  and  hold  that  he  is  not  liable 
beyond  compensatory  damages.17 

LIABILITY    OF    PRINCIPAL    FOR    TORT    OF    AGENT— IN 

GENERAL. 

64.  The  principal  is  liable  for  the  tort  of  his  agent  (not  aris- 
ing in  a  false  representation)  committed  •when  acting 
in  the  course  of  his  employment  and  in  furtherance 
of  it. 

SAME— FRAUD. 

65.  The  principal  in  liable  for  the  fraud  of  his  agent,  com- 
mitted for  the  principal's  benefit,  when  the  false  rep- 
resentation by  means  of  which  the  fraud  is  committed 
I*  made  as  an  inducement  to  a  third  person  in  a  trans- 
action which  is  -within  the  scope  of  the  agent's  actual 
authority,  or  which  is  within  the  scope  of  his  apparent 

•«  Farwell  v.  Railroad  Corp.,  4  Mete.  (Mass.)  49,  38  Am.  Dec.  339. 

*o  Goddard  v.  Railway,  57  Me.  202,  2  Am.  Rep.  39;  Atlantic  &  G. 
W.  Ry.  Co.  v.  Dunn,  19  Ohio  St  162,  2  Am.  Rep.  382;  New  Orleans, 
J.  &  G.  N.  R.  Co.  v.  Bailey,  40  Miss.  395,  452,  453;  Philadelphia,  W. 
&  B.  R.  Co.  v.  Larkin,  47  Md.  155,  28  Am.  Rep.  442;  Wheeler  & 
Wilson  Mfg.  Co.  T.  Boyee.  36  Kan.  350,  13  Pac.  609,  59  Am.  Rep.  571. 

««  5  Harv.  L.  R.  21-22. 

»T  Lake  Shore  &  M.  S.  R.  Co.  v.  Prentice,  147  U.  S.  101,  13  Sup. 
Ct.  261,  37  L.  Ed.  97:  Hagan  v.  Railroad  Co.,  3  R.  I.  88,  62  Am.  Dec. 
377;  Staples  v.  Schmid,  18  R.  I.  224,  26.  Atl.  193,  19  L.  R.  A.  824; 
Cleghorn  v.  Railroad  Co.,  56  N.  Y.  44,  15  Am.  Rep.  375;  Eviston  v. 
Cramer,  57  Wis.  570,  15  N.  W.  760;  Maisenbacker  v.  Society  Con- 
cordia,  71  Conn.  369,  42  Atl.  67,  71  Ain.  St.  Kep.  213;  Warner  v. 
Pacific  Co.,  113  Cal.  105,  45  Pac.  187,  54  Am.  St.  Rep.  327. 


276  LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

authority,  unless  the  person  dealing  -with  the  agent 
and  injured  by  the  fraud  has  notice  that  the  trans- 
action or  the  representation  is  unauthorized. 


SAME— FRAUD  NOT  FOR  PRINCIPAL'S  BENEFIT— ESTOP- 
PEL. 

66.  la  some  jurisdictions  it  is  held  that  when  the  principal 
has  clothed  the  agent  with  power  to  do  an  act  resting 
upon  the  existence  of  some  extrinsic  fact  necessarily 
and  peculiarly  within  the  knowledge  of  the  agent,  of 

v  the  existence  of  which  the  execution  of  the  power  is 

itself  a  representation,  a  third  person  dealing  with  the 
agent  in  good  faith,  pursuant  to  the  apparent  power, 
may  rely  upon  the  representation,  and  the  principal  is 
estopped  from  denying  the  authority  of  the  agent  to 
make  it,  to  such  person's  prejudice;  and  consequently 
that  if  the  agent  exercises  the  power  when  such  fact 
does  not  exist,  and  fraudulently,  the  principal  is  an- 
swerable in  tort  to  the  person  injured  by  the  fraud, 
although  it  was  committed  by  the  agent  for  his  own 
benefit  or  for  the  benefit  of  some  person  other  than  the 
principal. 

Liability  of  Principal  for  Tort  of  Agent  in  General. 

The  rule  which  governs  the  liability  of  the  principal  for 
the  torts  of  his  agent  is  usually  declared  to  be  the  same  as 
that  which  governs  the  liability  of  the  master  for  the  torts 
of  his  servant;  but  in  cases  involving  fraud  this  statement, 
it  is  believed,  requires  qualification. 

An  agent,  as  distinguished  from  a  servant,  is  a  person 
authorized  by  another  to  act  on  his  behalf  in  bringing  him 
into  legal  relations  with  third  persons.  He  is  employed,  as 
has  already  been  said,1  to  represent  his  employer  in  doing 
acts  the  object  of  which  is,  and  which  are  of  a  nature,  to 
bring  him  into  contractual  relations — as  by  making  offers, 
representations,  and  promises — and  in  doing  acts  the  object 
of  which  is,  and  which  are  of  a  nature,  to  affect  his  existing 
contractual  and  other  legal  relations,  by  way  of  performance 

§§  64-66.     i  Ante,  p.  7. 


§§  64r-66)         LIABILITY  OF  PRINCIPAL  FOR  TORT  OF  AGENT.         277 

and  discharge  of  his  obligations  and  enforcement  of  his 
rights.  It  is  his  function  to  create  new  relations,  usually  by 
inducing  third  persons  to  act,  and  not  ordinarily  to  perform 
on  his  employer's  behalf  other  acts,  which  can  impose  lia- 
bility upon  the  employer,  if  at  all,  only  by  reason  of  the  neg- 
ligent or  wrongful  manner  of  their  performance.*  He  may, 
indeed,  have  authority  to  perform  an  act  of  this  character 
as  an  incident  to  the  performance  of  his  peculiar  function, 
as  where  a  solicitor  or  an  attorney  has  authority,  as  an  in- 
cident to  the  enforcement  of  his  client's  right  of  action,  to 
cause  an  arrest  or  levy  to  be  made ;  *  and  one  and  the  same 
person  may  be  employed  both  as  an  agent  and  as  a  servant, 
with  a  consequent  broadening  of  the  field  of  employer's  lia- 
bility in  tort.  Dut  where  a  person  is  employed  merely  as  an 
agent,  his  power  of  subjecting  his  employer  to  liability  for 
torts  is  comparatively  narrow.  In  most  cases,  an  agent's 
tort  arises  only  in  a  false  representation,  and  hence  the  main 
question  in  respect  to  the  principal's  liability  in  tort  relates 
to  fraud.4  Before  taking  up  this  question,  it  will  be  con- 
venient to  consider  the  principal's  liability  for  other  torts. 

Same — Employment  as  Agent  and  Servant. 

Where  the  same  person  is  employed  as  a  servant  and  an 
agent,  the  employer,  as  master,  is,  of  course,  liable  for  the 
acts  of  the  servant  as  in  other  cases.  Thus,  if  a  person  is 
employed  to  sell  goods  or  to  make  other  contracts,  and  is 
intrusted  with  a  wagon  to  be  used  in  prosecuting  the  busi- 
ness of  his  employer,  and  by  the  terms  of  the  employment 
he  is  to  be  subject  to  the  employer's  direction  and  control, 
he  is  both  a  servant  and  an  agent,  and  for  his  negligence 
in  driving,  while  he  is  acting  in  the  course  of  the  employ- 
ment, the  employer  is  responsible.5  Illustrations  of  the  em- 
ployer's liability  as  master,  where  the  person  employed  is 

*  Ante,  p.  7.  •  Post,  p.  281.  «  Ante,  p.  8. 

B  Singer  Mfg.  Co.  v.  Rahn,  132  U.  S.  518,  10  Sup.  Ct.  175,  33  L. 
Ed.  440;  Mulvehlll  v.  Bates,  31  Minn.  364,  17  N.  W.  959,  47  Am.  Rep. 
79G.  See,  also,  Patten  v.  Rea,  2  C.  B.  (N.  S.)  606. 


278  LIABILITY   OF  PRINCIPAL  TO  THIRD   PERSON.  (Ch.  11 

servant  as  well  as  agent,  are  frequent  in  cases  of  libel,6  false 
imprisonment,7  malicious  prosecution,8  and  many  other 
torts.9  The  wrongful  act  must,  of  course,  be  committed  in 
the  course  of  and  within  the  scope  of  the  employment.10  In 
many  of  the  cases  here  cited  the  master  and  principal  was  a 
corporation;  for  the  rule  now  prevails  that  a  corporation  is 
liable  for  the  torts  of  its  servants  and  agents  committed  in 
the  course  of  the  employment  to  the  same  extent  as  a  natural 
person,  and  may  be  liable  for  malicious  wrongs.11 

«  Philadelphia,  W.  &  B.  R.  Co.  v.  Qulgley,  21  How.  (U.  S.)  202,  16 
L.  Ed.  73;  Andres  v.  Wells,  7  Johns.  (N.  Y.)  260,  5  Am.  Dec.  267; 
Bruce  v.  Reed,  104  Pa.  408,  49  Am.  Rep.  586;  Hoboken  Printing 
&  Publishing  Co.  v.  Kahn,  59  N.  J.  Law,  218,  35  Atl.  1053,  59  Am.  St. 
Rep.  585;  Bacon  v.  Railroad  Co.,  55  Mich.  224,  21  N.  W.  324,  54  Am. 
Rep.  372;  Allen  v.  Publishing  Co.,  81  Wis.  120,  50  N.  W.  1093;  post, 

P-  279. 

T  Lynch  v.  Railroad  Co.,  90  N.  Y.  77,  43  Am.  Rep.  141;  Palmeri  v. 
Railway  Co.,  133  N.  Y.  261,  30  N.  E.  1001,  16  L.  R.  A.  136,  28  Am. 
St  Rep.  632;  Staples  v.  Schmid,  18  R.  I.  224,  26  Atl.  193,  19  L.  R.  A. 
824. 

s  Reed  v.  Bank,  130  Mass.  443,  39  Am.  Rep.  468;  Krulevttz  v. 
Railroad,  140  Mass.  573,  5  N.  E.  500;  Turner  v.  Insurance  Co.,  55 
Mich.  236,  21  N.  W.  326;  Copley  v.  Sewing-Mach.  Co.,  2  Woods,  494, 
Fed.  Cas.  No.  3,213. 

Not  liable  where  for  a  purpose  personal  to  the  agent.  Larson  v. 
Association,  71  Minn.  101,  73  N.  W.  711. 

»  Where  the  superintendent  of  defendant's  factory,  who  had  gen- 
eral charge  of  the  business,  gave  notice  to  other  manufacturers  not 
to  employ  plaintiff,  who  had  been  in  the  service  of  defendants  as  an 
apprentice  under  indentures  erroneously  supposed  to  be  valid,  the 
superintendent  supposing  that  plaintiff  might  lawfully  be  reclaimed, 
and  that  others  might  not  lawfully  employ  him,  it  was  held  that  the 
acts  of  the  superintendent  were  within  the  scope  of  his  employment, 
and  that  defendants  were  liable  for  his  wrongful  act  in  preventing 
plaintiff  from  getting  work.  Blumenthal  v.  Shaw,  23  C.  C.  A.  590, 
77  Fed.  954. 

10  Poulton  v.  London  &  S.  W.  Ry.  Co.,  L.  R.  2  Q.  B.  534;   Abraham 
v.  Deakin  [1891]  1  Q.  B.  516;    Mulligan  v.  Railway  Co.,  129  N.  Y. 
506,  29  N.  E.  952,  14  L.  R.  A.  791,  26  Am.  St.  Rep.  539. 

11  Philadelphia,  W.  &  B.  R.  Co.  v.  Quigley,  21  Wall.  (U.  S.)  202, 
16  L.  Ed.  73;    Salt  Lake  City  v.  Hollister,  118  U.  S.  256,  6  Sup.  Ct. 


§§  64r-66)        LIABILITY  OF  PRINCIPAL  FOR  TORT  OF  AGENT.        279 

For  example,  where  a  person  was  employed  as  a  ticket 
agent  in  the  ticket  office  of  the  defendant  railway  company, 
subject  to  the  general  control  and  supervision  of  the  com- 
pany's general  passenger  agent,  and  it  was  part  of  the  agent's 
duty  to  post  in  the  office  notices  pertaining  to  the  business 
there  carried  on,  and  he  posted  an  extract  from  a  newspaper 
which  was  a  libel  upon  the  plaintiff,  a  neighboring  ticket 
broker,  indicating  that  he  was  not  a  safe  and  reliable  person 
from  whom  to  buy  tickets,  and  calculated  to  diminish  his  in- 
come and  thereby  increase  that  of  the  defendant  from  the 
sale  of  tickets,  it  was  held  that  there  was  evidence  that  the 
act  was  done  by  the  agent  in  the  course  of  his  business  as  a 
servant  of  the  defendant,  and  that  if  it  was  so  done  the  de- 
fendant was  liable.11  So,  where  it  is  the  duty,  or  at  least 
within  the  implied  authority,  of  a  ticket  agent,  in  the  protec- 
tion of  the  company's  interests,  to  recover  the  employer's 
property,  and  the  agent,  erroneously  believing  that  a  pur- 
chaser of  a  ticket  has  passed  a  counterfeit  coin  upon  him, 
and  thus  obtained  a  ticket  and  good  money  in  change,  caus- 
es the  purchaser  to  be  arrested,  the  company  is  responsible 
for  the  false  imprisonment.18  Such  cases  shade  into  those  in 
which  it  cannot  be  said  that  the  relation  of  master  and 
servant  exists,  but  in  which  the  wrongful  act  is  committed  in 

1055,  30  L.  Ed.  176;  Goodspeed  v.  Bank,  22  Conn.  530,  58  Am.  Dec. 
439;  Nims  v.  Boys'  School,  160  Mass.  177,  35  N.  E.  776,  22  L.  R,  A. 
364,  39  Am.  St  Rep.  467;  Clark,  Corp.  193,  523;  Jaggard,  Torts,  167. 

12  Fogg  v.  Railroad  Corp.,  148  Mass.  513,  20  N.  E.  109,  12  Am.  St. 
Rep.  583. 

is  Palmer!  v.  Railway  Co.,  133  N.  Y.  261,  30  N.  E.  1001,  16  L.  R. 
A.  136,  28  Am.  St.  Rep.  632. 

But  if  a  ticket  agent,  in  order  to  perform  a  supposed  duty  to  the 
community,  accepts  money  which  he  suspects  to  be  counterfeit,  and 
then  causes  the  arrest,  he  is  not  acting  in  the  course  of  his  employ- 
ment, and  the  company  is  not  answerable.  Mulligan  v.  Railway 
Co..  129  N.  Y.  506,  29  N.  E.  952,  14  L.  R.  A.  791,  26  Am.  St  Rep. 
539.  See,  also,  Allen  v.  L.  &  S.  W.  Ry.,  L.  R.  6  Q.  B.  65;  Abraham 
v.  Deakin  [1891]  1  Q.  B.  516;  Baltimore  &  Y.  Turnpike  Road  v. 
Green,  86  Md.  161,  37  Atl.  642. 


280  LIABILITY  OP  PRINCIPAL  TO   THIRD   PERSON.  (Ch.  11 

the  performance,  or  attempted  performance,  of  an  act  specif- 
ically commanded,  or  which  is  within  the  express  or  implied 
authority  of  the  agent  as  an  incident  to  the  enforcement  of 
the  principal's  rights  against  the  person  with  whom  the  agent 
is  authorized  to  deal.14 

Same —  Wrongful  Performance  of  Act  withm  Agent's  Au- 
thority. 

As  has  been  stated,  the  liability  of  the  employer  for  an  act 
which  he  has  commanded  does  not  depend  upon  the  peculiar 
relation  of  master  and  servant.  Such  liability  exists  even 
when  the  act  is  brought  about  by  the  employment  of  an  inde- 
pendent contractor.15  No  doubt  the  distinction  between  a 
servant  and  an  independent  contractor  is  somewhat  arbitrary, 
as  well  as  vague,  resting  on  "no  more  profound  or  logical 
reason"  than  the  practical  necessity  of  placing  a  limit  some- 
where upon  the  identification  of  employer  and  employed.18 
For  whatever  reason  it  may  be,  the  law  declares  that  in  act- 
ing in  the  course  of  his  employment  the  contractor  does  not 
represent  -his  employer,  and  that  a  servant  does  represent 
him.  But  let  it  once  be  established  that  the  person  employed 
does  act  in  what  the  law  has  seen  fit  to  regard  as  a  repre- 
sentative capacity,  the  rule  determining  the  liability  of  the 
employer  for  his  torts  is,  in  all  cases  not  involving  fraud,  the 
same. 

This  holds  true  even  when  the  authority  is  merely  a  specific 
command  to  do  a  single  act.  For  example,  if  a  person,  being 
commanded  by  another  to  go  to  a  certain  place  and  get  lum- 
ber belonging  to  him,  by  mistake  takes  lumber  belonging  to 
another,  the  person  who  gave  the  command  is  liable  for  the 

i*  Caswell  v.  Cross,  120  Mass.  545. 

Evidence  that  the  defendant  in  an  action  for  malicious  prosecution 
employed  a  person  to  search  for  property  he  had  lost,  and  to  take  all 
legal  steps  necessary  for  its  recovery,  and  that  such  person  charged 
plaintiff  with  larceny  of  the  property,  and  caused  his  arrest,  does  not 
sustain  a  verdict  for  plaintiff.  Murrey  v.  Kelso,  10  Wash.  47,  38 
Pac.  879. 

IB  Ante,  p.  270.  16  See  5  Harv.  L.  R.  14-16. 


§§  64-66)        LIABILITY  OF  PRINCIPAL  FOR  TORT  OF  AGENT.         281 

trespass,17  and  he  would  also  be  liable  if  in  taking  the  right 
lumber  the  person  used  unlawful  force.  Here  the  scope  of 
the  employment  is,  of  course,  very  narrow. 

And  so  when  the  relation  is  that  of  principal  and  agent 
in  the  narrow  sense,  if,  in  the  course  of  the  employment 
and  in  furtherance  of  it,  in  performing  or  attempting  to  per- 
form some  act  which  is  within  the  agent's  authority  as  inci- 
dent to  his  authority  to  create  a  new  relation,  he  commits  a 
tort,  the  principal  is  answerable.  Thus,  if  a  solicitor  or  at- 
torney at  law,  who  has  authority  as  such  in  the  conduct 
of  a  suit  to  cause  the  defendant  to  be  arrested  or  his  property 
to  be  taken  on  execution,  does  so  when  the  particular  cir- 
cumstances do  not  justify  the  arrest 18  or  the  seizure,19  the 

"  May  v.  Bliss,  22  Vt.  477.  See,  also,  Andrus  v.  Howard.  36  Vt. 
248,  84  Am.  Dec.  680;  Moir  v.  Hopkins,  16  111.  313,  63  Am.  Dec.  312; 
Maier  v.  Randolph,  33  Kan.  340,  6  Pac.  625. 

is  Collett  v.  Foster,  2  H.  &  N.  356. 

In  this  case,  judgment  having  been  entered  up  against  plaintiff,  on 
a  warrant  of  attorney,  for  £60,  given  to  secure  a  debt  payable  by  in- 
stallments of  which  less  than  £20  was  due,  defendant's  attorney 
caused  plaintiff  to  be  arrested  tinder  a  ca.  sa.,  indorsed  to  levy 
£21  10s.  Held,  that  defendant  was  liable  in  trespass  for  the  act  of 
the  attorney  in  improperly  causing  plaintiff  to  be  arrested.  "I  think," 
said  Pollock,  C.  B.,  "there  is  a  great  distinction  between  employing 
an  attorney  who  represents  the  parties  in  a  suit  and  employing  a 
contractor  to  do  work,  such  as  building  a  house.  In  the  latter  case 
the  employer  is  not  liable  for  the  acts  of  the  contractor  *  *  *; 
but  *  *  *  a  person  is  liable  for  the  acts  of  his  attorney  in  the 
conduct  of  a  suit  at  law  brought  under  his  authority.  He  gives  to 
the  attorney  the  right  to  represent  him,  and  he  is  responsible  for 
whatever  the  attorney  does."  See,  also,  Bates  v.  Pilling,  6  B.  &  C. 
38. 

i»  Foster  v.  Wiley,  27  Mich.  245,  15  Am.  Rep.  185,  holding  a.  client 
liable  in  trespass  for  taking  property  on  execution  issued  by  a  jus- 
tice of  the  peace  at  the  instance  of  the  attorney  after  an  appeal  was 
perfected.  A  client  who  puts  his  claim  in  the  hands  of  an  attorney 
for  suit,  said  Cooley,  J.,  is  presumed  to  authorize  such  action  as  the 
latter  in  his  superior  knowledge  of  the  law  may  decide  to  be  legal; 
and  whatever  adverse  proceedings  the  attorney  may  take  are  to  be 
considered,  so  far  as  affects  the  defendant  in  the  suit,  as  approved 


282  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

client  is  liable  for  the  trespass.  The  scope  of  the  employ- 
ment of  such  an  agent  also  is  very  narrow.  For  example, 
where  a  solicitor,  by  an  indorsement  on  a  writ  of  execution 
directing  the  sheriff  to  levy  on  the  goods  of  the  judgment 
debtor,  misled  the  sheriff  by  giving  the  address  of  the 
debtor's  father,  whose  goods  were,  in  consequence,  wrong- 
fully seized  by  the  sheriff,  it  was  held  that  the  client  was  lia- 
ble ;  it  being  part  of  the  duty  of  the  solicitor,  in  the  or- 
dinary course  of  the  employment,  to  indorse  the  writ.20  But 
where  a  solicitor  on  issuing  a  writ  verbally  directed  the 
sheriff  to  seize  particular  goods,  which  were  not  the  debtor's 
property,  it  was  held  that  the  client  was  not  liable,  since  it 
was  not  within  the  scope  of  his  implied  authority  as  solicitor 
to  direct  the  sheriff  to  seize  particular  goods.21 

Of  course,  if  a  third  person,  dealing  with  the  agent  within 
the  scope  of  his  authority,  intrusts  to  him  property  which  the 
agent  misappropriates  22  or  negligently  injures,23  the  prin- 
cipal is  answerable  for  the  loss  or  injury. 

Liability  for  Fraud — In  General. 

A  false  representation  may  be  the  inducement  to  a  con- 
tract or  it  may  be  part  of  a  contract,  and  thus  give  rise  to  a 
right  of  action  for  breach  of  the  contract.  A  false  representa- 
tion may  also  create  an  estoppel.  And,  finally,  a  false  repre- 
sentation, if  fraudulent,  may  give  a  right  to  rescind  a  contract 

In  advance  by  the  client,  and  his  acts,  even  if  they  prove  unwar- 
ranted in  law,  although  as  to  trespasses  on  third  parties  the  rule  is 
different. 

Cf.  Howell  v.  Caryl,  50  Mo.  App.  444;   Kirksey  v.  Jones,  7  Ala.  622. 

20  Morris  v.  Salberg,  22  Q.  B.  D.  614. 

"If  he  is  his  agent  to  do  the  particular  act,  the  client  must  stand 
the  consequences  if  he  acts  inadvertently  or  ignorantly."  Jarmain 
v.  Hooper,  6  M.  &  G.  827,  per  Tindal,  C.  J. 

21  Smith  v.  Keal,  9  Q.  B.  D.  340.     See,  also,  Averill  v.  Williams, 
4  Denio  (N.  Y.)  295,  47  Am.  Dec.  252;   Welsh  v.  Cochran,  63  N.  Y. 
181,  20  Am.  Rep.  519. 

22  Thompson  v.  Bell,  10  Ex.  10. 

"  Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  516. 


§§  64^66)        LIABILITY  OF  PRINCIPAL  FOR  TORT  OF  AGENT.        283 

or  a  right  of  action  in  tort  for  deceit.  An  innocent  misrepre- 
sentation, which  is  not  a  term  of  the  contract,  has  ordinarily  no 
effect  upon  it,  though  in  certain  classes  of  contracts  it  gives 
rise  to  a  right  of  rescission,  and  it  may  sometimes  be  ground 
for  granting  or  refusing  equitable  relief.  Whenever,  how- 
ever, a  party  to  a  contract  has  been  induced  to  enter  into  it 
by  the  fraud  of  the  other  party,  the  contract  is  voidable,  at 
his  option.24  "Fraud,"  as  the  word  is  here  used,  is  a  false 
representation  of  a  material  fact,  made  with  a  knowledge  of 
its  falsity,  or  in  reckless  disregard  of  whether  it  is  true  or 
false,  with  the  intention  that  it  shall  be  acted  upon  by  the 
complaining  party,  and  actually  inducing  him  to  act  upon  it 
to  his  injury.86  The  same  state  of  facts  which  is  ground  for 
an  avoidance  of  the  contract  also  gives  rise  to  an  action  at 
common  law  for  deceit,  in  which  the  defrauded  party  may  re- 
cover such  damages  as  he  has  suffered  by  reason  of  the  false 
representation.  It  is  not  essential,  however,  that  a  repre- 
sentation, in  order  to  give  ground  for  an  action  for  deceit, 
be  made  directly  to  the  injured  party ;  26  nor  is  it  essential 
that  it  be  made  as  an  inducement  to  the  injured  party  to  con- 
tract with  the  person  making  the  representation ;  it  is  enough 
if  it  be  made  as  an  inducement  to  act,  and  he  so  acts  in  conse- 
quence, and  thereby  suffers  damage.27 

Same — Deceit. 

"With  respect  to  the  question  whether  a  principal  is  an- 
swerable for  the  act  of  his  agent  in  the  course  of  his  master's 
business  and  for  his  master's  benefit,"  said  Willes,  J.,  in  the 
English  case  of  Barwick  v.  English  Joint  Stock  Bank,28  "no 

»*  Clark,  Contr.  308  et  seq. 

.  25  Clark,  Contr.  324  et  seq.;  laggard,  Torts,  558  et  seq.;  Tiffany, 
Sales,  111  et  seq. 

26  Barry  v.  Croskey,  2  Johns.  &  H.  1,  22;  Langrldge  v.  Levy,  2  M. 
&  W.  519;  Wells  v.  Cook,  16  Ohio  St.  67,  88  Am.  Dec.  436;  Bank  of 
Montreal  v.  Thayer  (C.  C.)  7  Fed.  623. 

«  Langridge  v.  Levy,  2  M.  &  W.  519. 

28  L.  R.  2  Ex.  259.  In  this  case  plaintiff,  who  had  been  In  the 
habit  of  supplying  D.,  a  customer  of  defendant  bank,  with  oats  on 


284  LIABILITY  OP  PRINCIPAL  TO   THIRD   PERSON.  vCh.  11 

sensible  distinction  can  be  drawn  between  the  case  of  fraud 
and  the  case  of  any  other  wrong.  The  general  rule  is  that  the 
master  is  answerable  for  every  such  wrong  of  the  servant  or 
agent  as  is  committed  in  the  course  of  the  service  and  for  the 
master's  benefit.  *  *  *  It  may  be  said  *  *  *  that 
the  master  has  not  authorized  the  act.  It  is  true,  he  has  not 
authorized  the  particular  act,  but  he  has  put  the  agent  in  his 
place  to  do  that  class  of  acts,  and  he  must  be  answerable  for 
the  manner  in  which  the  agent  has  conducted  himself  in  doing 
the  business  which  it  was  the  act  of  the  master  to  place 
him  in." 

This  statement  of  the  rule  governing  the  principal's  lia- 
bility for  fraud  calls  for  explanation.29  The  rule  declares 

credit  on  a  guaranty  of  defendant,  refused  to  continue  to  do  so  ex- 
cept on  a  better  guaranty.  Defendant's  manager  accordingly  prom- 
ised in  writing  that  if  plaintiff  would  supply  to  D.  oats  which  were 
needed  by  him  to  fulfill  a  government  contract,  the  bank  would 
honor  D.'s  check  in  plaintiff's  favor  in  payment  of  the  same,  on 
receipt  of  the  money  from  the  government  in  payment  under  the 
contract,  "in  priority  to  any  other  payment  except  to  this  bank."  D. 
then  owed  the  bank  £12.000,  which  fact  was  not  communicated  to 
plaintiff,  who  supplied  oats  to  the  value  of  £1,227.  D.  received  £2,- 
676  from  the  government,  paid  it  into  the  bank,  and  drew  a  check 
in  plaintiff's  favor  for  the  amount  of  the  oats,  which  was  dishonored, 
the  bank  claiming  to  retain  the  whole  £2,676  in  payment  of  D.'s 
debt.  It  was  held  that  there  was  evidence  for  the  jury  that  the 
manager  knew  and  intended  that  the  guaranty  would  be  unavailing, 
and  fraudulently  concealed  the  fact  that  would  make  it  so,  and  that 
the  bank  would  be  liable  for  such  fraud.  See,  also,  Mackay  v.  Com- 
mercial Bank,  L.  R.  5  P.  C.  394;  Swire  v.  Francis,  3  App.  Gas.  106; 
Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Gas.  317.  Cf.  Addie 
v.  Western  Bank,  L.  R.  1  Sc.  &  D.  145,  158,  166,  167. 

29  "The  principle  which  governs  such  cases  as  these  (Barwick  v. 
English  Joint-Stock  Bank,  L.  R.  2  Ex.  259,  and  the  cases  following 
it)  is  not  that  the  master  is  liable  for  the  acts  of  his  servant  It 
is  the  liability  of  the  principal  for  the  acts  of  his  agent.  *  *  *  It 
seems  to  me.  then,  that  Barwick  v.  English  Joint-Stock  Bank  cannot 
be  supported  on  the  reasons  given.  *  *  *  I  think  that  any  person 
who  authorizes  another  to  act  for  him  in  the  making  of  any  contract 
undertakes  for  the  absence  of  fraud  in  that  person  in  the  execution 


§§  64-66)        LIABILITY  OP  PRINCIPAL  FOR  TORT  OF  AGENT.         285 

that  the  principal  is  liable  for  the  wrongs  of  his  agent  or 
servant,  committed  in  the  "course  of  the  service,"  or,  as 
is  commonly  said,  in  the  course  of  the  employment.  It  is 
to  be  borne  in  mind,  however,  that  when  the  wrong  is  fraud 
the  person  injured  by  the  representation  is  dealing  with  the 
agent  and  by  him  induced  to  act,  and  is  not  merely  acted 
upon;  and  that,  as  against  third  persons  who  deal  with  him 
without  notice  of  limitations  upon  his  authority,  he  has  the 
powers  usually  confided  to  an  agent  of  that  character,  which 
may  exceed  the  authority  actually  conferred,  while  as  against 
persons  dealing  with  him  with  such  notice  his  powers  do  not 
exceed  his  actual  authority.30  The  rule,  as  applied  to  fraud, 
must  be  interpreted  in  the  light  of  these  considerations.  The 
agent  may  perhaps  be  said  to  be  acting  in  the  course  of  his 
employment,  although  he  exceeds  his  actual  authority,  so 
long  as  he  does  not  exceed  the  usual  powers  of  an  agent  of 
that  character;  but,  although  he  be  so  acting,  the  third  per- 
son dealing  with 'him  and  injured  by  his  fraud  can  thereby 
acquire  no  rights  against  the  principal  if  he  has  notice  that 
the  transaction  in  which  the  representation  is  made,  or  the 
representation  itself,  is  in  fact  unauthorized.  On  the  whole, 
it  seems  to  place  the  matter  in  a  clearer  light  to  discard  the 
term  "course  of  employment,"  and  to  substitute  "scope  of 
authority."  The  principal  is  liable  for  the  fraud  of  his  agent, 
committed  for  his  benefit,  in  a  transaction  which  is  within  the 
scope  of  the  agent's  actual  authority,  or  which  is  within  the 
scope  of  his  apparent  authority,  unless  the  person  dealing 
with  him  and  injured  by  his  fraud  has  notice  that  the  transac- 
tion or  the  representation  is  unauthorized.  Of  course,  in 
any  case,  if  the  third  person  knows  that  the  representation  is 
not  true,  he  is  not  injured,  and  no  fraud  is  committed;  but 

of  the  authority  given,  as  much  as  he  contracts  for  Its  absence  in 
himself  when  he  makes  the  contract."  Weir  v.  Bell,  3  Ex.  D.  238, 
244,  per  Bramwell,  L.  J.  See,  also,  McNeile  v.  Cridland,  168  Pa. 
16,  31  Atl.  939. 

«o  Ante,  p.  180  et  seq.    See  Huffcut,  Ag.  (2d  Ed.)  10  et  seq.,  193 
et  seq. 


286  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

this  is  aside  from  any  question  of  agency.  Second,  the  rule 
as  stated  declares  that  the  fraud  must  be  committed  for  the 
benefit  of  the  principal.  How  far  this  is  subject  to  qualifica- 
tion will  be  considered  later.81 

It  follows  that  if,  in  furtherance  of  the  business  committed 
to  him,  the  agent  commits  a  fraud  by  making  a  false  repre- 
sentation which  belongs  to  the  class  of  representations  that, 
as  against  the  person  dealing  with  him,  he  must  be  deemed 
to  have  authority  to  make,  the  principal  is  answerable.82 
Whether  the  principal  is  answerable,  if  the  representation 
is  made  as  an  inducement  to  an  authorized  contract,  but  does 
not  belong  to  a  class  of  representations  which  he  would  be 
deemed  to  have  authority  to  make  as  a  term  of  the  contract — 
as  where  an  agent  authorized  to  sell  makes  a  representation 
which  would  not  be  binding  as  a  warranty  because  such  a 
warranty  would  be  unusual — is  a  question  upon  which  there 
has  been  difference  of  opinion.83  In  many  cases  where  the 

»i  Post,  p.  288. 

«2  Barwick  v.  English  Joint-Stock  Bank,  L.  R.  2  Ex.  259;  Mayer 
v.  Dean,  115  N.  Y.  556,  22  N.  E.  201,  5  L.  R.  A.  540;  Griswold  v. 
Gebbie,  126  Pa.  353,  17  Atl.  673,  12  Am.  St.  Rep.  878. 

as  Udell  v.  Atherton,  7  H.  &  N.  172. 

In  this  case  one  employed  by  defendants  to  sell  timber  on  com- 
mission sold  plaintiff  a  defective  mahogany  log,  which  he  fraudu- 
lently represented  to  be  sound,  defendants  being  unaware  of  the 
defect  or  of  the  representation.  In  an  action  for  deceit  the  court 
directed  a  nonsuit,  and  the  court  in  bane  was  equally  divided 
whether  the  ruling  should  be  sustained.  In  Barwick  v.  English 
Joint-Stock  Bank,  L.  R.  2  Ex.  259,  Willes,  J.,  disclaiming  to  over- 
rule the  opinions  of  Bramwell  and  Martin,  BB.,  in  Udell  v.  Atherton, 
who  upheld  the  nonsuit,  said:  "It  seems  pretty  clear  that  the  di- 
vision of  opinion  *  *  *  arose,  not  so  much  upon  the  question 
whether  the  principal  is  answerable  for  the  act  of  an  agent  in  the 
course  of  his  business — a  question  which  was  settled  as  early  as 
Lord  Holt's  time,  in  Hern  v.  Nichols,  1  Salk.  289— but  in  applying 
that  principle  to  the  peculiar  facts  of  the  case;  the  act  which  was 
relied  upon  there  as  constituting  a  liability  in  the  sellers  having  been 
an  act  adopted  by  them  under  peculiar  circumstances,  and  the  au- 
thor of  that  act  not  being  their  general  agent  in  business,  as  the 
manager  of  a  bank  is." 


§§  64-66)        LIABILITY  OF  PRINCIPAL  FOR  TORT  OF  AGENT.         287 

principal  is  held  liable  for  the  fraud  of  his  agent  made  as  an 
inducement  to  a  sale,  the  question  does  not  arise  because  the 
representation  is  of  a  class  which  the  agent  has  apparent 
authority  to  make.  An  agent  authorized  to  effect  a  sale  of 
property  "must  be  presumed  to  possess  authority  to  make 
such  representations  in  regard  to  its  quality  and  condition  as 
usually  accompany  such  transactions."  84  The  rule,  however, 
in  this  country  at  least,  is  usually  stated  in  broader  terms,  and 
it  is  declared  that  it  is  sufficient  to  charge  the  principal  for 
the  agent's  fraud  that  the  agent  is  acting  in  the  business 
which  he  is  authorized  to  transact,  and  that  the  represen- 
tation is  made  in  that  transaction  and  as  an  inducement  to 
the  other  party  to  act.  Thus,  where  an  agent  is  authorized 
to  sell,  his  false  representation  concerning  the  property,  made 
as  an  inducement  to  the  purchaser,  binds  the  seller,  who  is 
liable  to  the  purchaser  in  an  action  of  tort  for  deceit.85 

«*  Mayer  v.  Dean,  115  N.  Y.  556,  22  N.  E.  261,  5  L.  R.  A.  540,  per 
Ruger,  C.  J.  In  this  case  it  was  held  that,  while  a  written  contract 
for  sale  of  goods  by  sample  cannot  be  shown  by  oral  evidence  to  be 
made  with  warranty  wheii  none  is  set  out  in  the  contract,  the  state- 
ments of  the  broker  falsely  recommending  the  quality  are  admissible 
to  prove  fraud.  See,  also,  Griswold  v.  Gebbie,  126  Pa.  353,  17  Atl. 
673,  12  Am.  St.  Rep.  878. 

ss  Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  518,  28  Am.  Dec.  476; 
Locke  v.  Stearns,  1  Mete.  (Mass.)  560,  35  Am.  Dec.  382;  White  v. 
Sawyer,  16  Gray  (Mass.)  586;  Haskell  v.  Starbird,  152  Mass.  117. 
25  N.  E.  14,  23  Am.  St.  Rep.  809;  Rhoda  v.  Annis,  75  Me.  17,  46 
Am.  Rep.  354;  Peebles  v.  Guano  Co.,  77  N.  C.  233,  24  Am.  Rep. 
447;  Wolfe  v.  Pugh,  101  Ind.  293;  Busch  r.  Wilcox,  82  Mich.  315, 
46  N.  W.  940;  Gunther  v.  Ullrich,  82  Wis.  220,  52  N.  W.  88,  33  Am. 
St.  Rep.  32;  Hopkins  v.  Insurance  Co^  57  Iowa,  203,  10  N.  W.  605, 
42  Am.  Rep.  41;  Lynch  v.  Trust  Co.  (C.  C.)  IS  Fed.  486. 

The  representation  must  be  made  in  the  particular  transaction. 
Gate  v.  Blodgett,  70  N.  H.  316,  48  Atl.  281. 

Contra  (holding  that  an  action  for  deceit  will  not  lie  against  an 
Innocent  principal):  Kennedy  v.  McKay,  43  N.  J.  Law,  288,  39  Am. 
Rep.  581;  State  v.  Fredericks,  47  N.  J.  Law,  469,  1  Atl.  470;  Freyer 
v.  McCord,  165  Pa.  539,  30  Atl.  1024;  Keefo  v.  Sholl,  181  Pa.  90, 
87  Atl.  116. 

So  far  as  Udell  v.  Atherton,  7  H.  &  N.  172,  and  Western  Bank 


288  LIABILITY  OP  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

"While  the  principal  may  not  have  authorized  the  particular 
act  [the  representation],  he  has  put  the  agent  in  his  place 
to  make  the  sale,  and  must  be  responsible  for  the  manner  in 
which  he  has  conducted  himself  in  doing  the  business  which 
the  principal  intrusted  to  him."  8e  "Having  given  such  au- 
thority, the  principal  is  responsible  for  the  fraudulent  as 
well  as  the  fair  means  used  by  the  agent,  if  they  are  in  the 
line  of  accomplishing  the  object  of  the  agency."  8T  If  when 
the  representation  is  made  the  agent  is  not  engaged  in  a 
transaction  within  the  scope  of  his  authority,  the  principal 
is  not  answerable  for  it.88  The  principal  cannot,  however, 
reap  the  fruit  of  his  agent's  fraud  and  escape  liability  by  de- 
nying the  agent's  authority;  he  cannot  retain  the  benefits 
derived  from  the  fraudulent  conduct  of  the  agent  without 
being  charged  with  the  instrumentalities  used  to  accomplish 
the  purpose.38 

Fraud  not  for  Principals  Benefit — English  Rule. 

In  England  it  is  clearly  established  that  to  make  the  prin- 
cipal liable  the  fraud  must  be  committed  by  the  agent  not 

v.  Addie,  L.  R.  1  Sc.  &  D.  Gas.  145,  support  this  doctrine,  they  are 
opposed  to  the  later  English  decisions. 

86Haskell  v.  Starbird,  152  Mass.  117,  25  N.  E.  14,  23  Am.  St. 
Rep.  809,  per  Devens,  J.  The  court  also  said:  "The  defendant  con- 
tends that  Rockwell  was  a  special  agent  only,  and  that,  as  his  au- 
thority extended  only  to  the  sale  of  this  single  tract  of  land,  the 
defendant  is  not  responsible  for  any  representations  Rockwell  might 
have  made,  which  he  did  not  authorize.  *  *  *  There  is  no  dis- 
tinction in  the  matter  of  responsibility  for  the  fraud  of  an  agent  au- 
thorized to  do  business  generally  and  of  an  agent  employed  to  con- 
duct a  single  transaction,  if  in  either  case  he  Is  acting  in  the  busi- 
ness for  which  he  was  employed  by  the  principal,  and  had  full  au- 
thority to  complete  the  transaction." 

«7  Wolfe  v.  Pugh,  101  Ind.  293. 

ss  Lamm  v.  Association,  49  Md.  233.  33  Am.  Rep.  246;  Second  Nat. 
Bank  v.  Howe,  40  Minn.  390,  42  N.  W.  200,  12  Am.  St.  Rep.  744; 
Browning  v.  Hlnkle,  48  Minu.  544,  51  N.  W.  605,  31  Am.  St.  Rep.  691. 

39  Bennett  v.  Judson,  21  N.  Y.  238;  Krumm  v.  Beach,  96  N.  Y. 
398;  Sunbury  Fire  Ins.  Co.  v.  Humble,  100  Pa.  495;  Busch  v.  Wil- 


§§  64^66)         LIABILITY  OF   PRINCIPAL   FOR  TORT  OF  AGENT.         289 

merely  in  the  course  of  the  employment,  but  must  be  for 
the  benefit  of  the  principal;  that  is,  in  furtherance  of  his 
business.40  Thus,  where  the  secretary  of  the  defendant  com- 
pany had,  in  conjunction  with  another,  fraudulently  issued 
certificates  for  debenture  stock  in  excess  of  the  amount  the 
company  was  authorized  to  issue,  and  the  plaintiffs,  who  had 
been  applied  to  by  customers  for  a  loan  on  the  security  of 
transfers  of  some  of  this  stock,  were  informed  by  the  secre- 
tary, who  was  held  out  as  such  to  answer  such  inquiries,  that 
the  transfers  were  valid,  and  that  the  stock  which  they  pro- 
posed to  transfer  existed,  and  the  plaintiffs  accordingly  lost 
their  security,  it  was  held  in  an  action  to  recover  damages  for 
fraudulent  misrepresentation  that,  the  fraud  being  committed 
by  the  secretary  for  his  own  purposes  and  not  for  the  benefit 
of  the  company,  the  defendant  was  not  liable.  "The  secre- 
tary was  held  out  by  the  defendants,"  said  Lord  Esher,  "as 

cox,  82  Mich.  336,  47  N.  W.  328,  21  Am.  St  Rep.  563;  Ripley  v. 
Case,  86  Mich.  261,  49  S.  W.  46;  Albitz  v.  Railway  Co.,  40  Minn. 
476,  42  X.  W.  394;  Leavitt  v.  SJzer,  35  Neb.  80,  52  N.  W.  832;  Con- 
tinental Ins.  Co.  v.  Insurance  Co.,  2  C.  C.  A.  535,  51  Fed.  884. 

Cf.  Smith  v.  Tracy,  36  N.  Y.  79;  Baldwin  v.  Burrows,  47  N.  Y. 
199;  ante,  p.  65  et  seq. 

A  joint  owner  of  real  estate,  who  consents  to  the  listing  thereof 
by  his  co-owner  with  a  real-estate  agent  for  sale,  receives  part  of 
the  consideration,  and  never  repudiates  the  sale  made  by  the  agents 
after  discovering  that  they  were  guilty  of  fraud,  is  estopped  to  deny 
connection  with  the  fraud,  but  will  be  held  liable  only  to  the  extent 
of  the  benefit  actually  received.  Alger  v.  Anderson  (C.  C.)  78  Fed. 
729. 

<o  British  Mutual  Bank  v.  Charnwood  Forest  Ry.,  18  Q.  B.  D.  714; 
Thome  v.  Heard  [1895]  A.  C.  495,  64  L.  J.  Ch.  652,  affirming  [1894] 
1  Ch.  599;  Shaw  v.  Port  Philip  Gold  Mining  Co.,  13  Q.  B.  D.  103, 
seems  to  be  no  longer  law;  Bowstead,  Dig.  Ag.  art.  100. 

Where  the  secretary  of  a  company,  to  assist  a  shareholder  in  car- 
rying out  a  fraud,  falsely  certified  that  certificates  had  been  de- 
posited to  meet  certain  transfers,  the  company  was  not  liable  to  the 
transferee  for  the  fraud;  following  Grant  v.  Norway,  10  C.  B.  665. 
George  Whitechurch,  Limited,  v.  Cavanagh,  85  L.  T.  (N.  S.)  349  [1892] 
A.  C.  117. 

TIFF.P.&  A.— 19 


290  LIABILITY  OF  PRINCIPAL  TO   THIRD   PERSON.  (Ch.  11 

a  person  to  answer  such  questions,  *  *  *  and  if  he  had 
answered  them  falsely  on  behalf  of  the  defendants,  he  being 
then  authorized  by  them  to  give  answers  for  them,  it  may  well 
be  that  they  would  be  liable.  But  *  *  *  he  did  not  make 
the  statements  for  the  defendants,  but  for  himself.  He  had  a 
friend  whom  he  desired  to  assist,  *  *  *  and,  as  he  made 
them  in  his  own  interest  or  to  assist  his  friend,  he  was  not 
acting  for  the  defendants.  The  rule  has  often  been  expressed 
in  the  terms  that  to  bind  the  principal  the  agent  must  be  act- 
ing 'for  the  benefit'  of  the  principal.  This,  in  my  opinion,  is 
equivalent  to  saying  that  he  must  be  acting  'for'  the  principal. 
*  *  *  I  know  of  no  case  where  the  employer  has  been 
held  liable  when  his  servant  has  made  statements  not  for 
his  employer,  but  in  his  own  interest."  41 

Same — Rules  i/n  This  Country. 

The  requirement  that  the  fraud  must  be  for  the  princi- 
pal's benefit  has  been  approved  by  some  courts  in  this  coun- 
try.42 In  other  jurisdictions  the  liability  of  the  principal  has 
been  maintained,  where  the  fraud  is  not  committed  for  the 
benefit  of  the  principal,  upon  the  ground  of  equitable  estop- 
pel. It  is  to  be  observed  that  in  many  cases  where  the  prin- 
cipal is  held  answerable  the  fraud  is  necessarily  for  his  benefit, 
and  the  question  does  not  arise,  as  where  the  agent  is  author- 
ized to  effect  a  sale,  and  the  false  statement  is  made  as  an  in- 
ducement to  it,  and  consequently  in  furtherance  of  the  princi- 
pal's business.  The  question  is  presented  (i)  in  cases  where 
the  agent  has  authority  to  furnish  information  in  answer  to 
inquiries,  and  fraudulently  furnishes  false  information  for  his 
own  benefit,  or  for  the  benefit  of  some  person  other  than  his 
principal;  and  (2)  in  cases  where  the  agent  has  authority  to 
do  an  act  in  the  event  of  the  existence  of  some  extrinsic  fact 
resting  peculiarly  within  his  own  knowledge,  and  for  his  own 
benefit,  or  for  the  benefit  of  some  person  other  than  the 

«i  British  Mutual  Bank  v.  Charnwood  Forest  Ry.,  18  Q.  B.  D.  714. 
«2  Friedlander  v.  Railway  Co.,  130  U.  S.  416,  9  Sup.  Ot  570,  32  L. 
Ed.  991;  Dun  v.  Bank,  7  C.  C.  A.  152,  58  Fed.  174.  23  L.  R.  A.  687. 


§§  64-66)        LIABILITY  OP  PRINCIPAL  FOR  TORT  OF  AGENT.         291 

principal,  does  the  act,  knowing  that  the  fact  does  not  exist. 
In  a  case  of  the  former  character,  where  the  local  agent 
of  the  defendants,  constituting  a  so-called  mercantile  agency, 
knowingly  gave  false  information  concerning  the  standing  of 
a  merchant  with  intent  to  mislead  the  plaintiff  and  benefit 
the  merchant,  it  was  held  that  the  defendants  were  liable  for 
the  fraud.48  The  case  was  reversed,  but  partly  on  another 
ground.44  This  exact  question  has  seldom  been  presented, 
but  the  answer  perhaps  depends  upon  the  same  considera- 
tions which  are  involved  in  cases  of  the  latter  character, 
namely,  whether,  the  truth  or  falsity  of  the  representation  ly- 
ing peculiarly  within  the  knowledge  of  the  agent,  the  prin- 
cipal is  not  estopped  as  against  a  third  person  dealing  with 
the  agent,  and  relying  upon  the  truth  of  the  representation, 
not  merely  from  denying  the  truth,  but  from  denying  the 
authority  of  the  agent  to  make  it. 

In  cases  of  the  latter  character  the  liability  of  the  principal 
for  the  agent's  fraud  is  in  many  jurisdictions  maintained  upon 
the  ground  of  an  equitable  estoppel,  for  reasons  which  have 
already  been  somewhat  discussed  in  considering  the  liability 
of  the  principal  for  contracts.48     The  principle  which  is  there 
recognized  was  stated  in  a  leading  case  4*  as  follows :  "Where 
the  principal  has  clothed  his  agent  with  power  to  do  an  act 
resting  upon  the  existence  of  some  extrinsic  fact  necessarily 
and  peculiarly  within  the  knowledge  of  the  agent,  and  of 
the  existence  of  which  the  act  of  executing  the  power  is  itself 
a  representation,  a  third  person  dealing  with  such  agent  in 
entire  good  faith,  pursuant  to  the  apparent  power,  may  rely 
upon  the  representation,  and  the  principal  is  estopped  from 
denying  its  truth  to  his   prejudice."     Where  the   act  thus 
authorized  is  a  contract,  the  effect  of  the  estoppel  is  to  pre- 
clude the  principal  from  denying  the  truth  of  the  represen- 
ts City  Nat.  Bank  v.  Dun  (C.  C.)  51  Fed.  160. 
«4  Dun  v.  Bank,  7  C.  C.  A.  152,  58  Fed.  174,  23  L.  R.  A.  687. 
46  Ante,  p.  199. 
46  New  York  &  N.  H.  R.  Co.  v.  Schuyler,  34  N.  Y.  30. 


292  LIABILITY  OP   PRINCIPAL  TO  THIRD   PERSON.  (Ch.  11 

tation,  and  consequently  from  escaping  liability  upon  the 
contract.  And,  since  the  person  dealing  with  the  agent  may 
rely  upon  the  representation,  the  principal  is  equally  estop- 
ped from  denying  the  authority  of  the  agent  to  make  it, 
when  sought  to  be  charged  for  the  agent's  fraud  in  an  action 
of  tort.  If  the  defendant  seeks  to  repudiate  the  representa- 
tion because  it  is  false,  the  plaintiff  may  answer:  "You  in- 
trusted your  agent  with  means  effectually  to  deceive  me  by 
doing  an  act  which  in  all  respects  compared  with  the  author- 
ity you  gave,  and  which  act  represented  that  an  extrinsic 
fact  known  to  your  agent  or  yourself,  but  unknown  to  me, 
existed,  and  you  have  thus  enabled  your  agent,  by  false- 
hood, to  deceive  me,  and  must  bear  the  consequences.  The 
very  power  you  gave,  since  it  could  not  be  exercised  without 
a  representation,  has  led  me  into  this  position,  and  therefore 
you  are  estopped  in  justice  to  deny  his  authority  in  this 
case."  47 

In  accordance  with  this  principle,  it  has  been  held  that  where 
the  officer  of  a  corporation  authorized  to  issue  certificates 
of  stock  fraudulently  and  for  his  own  benefit  issues  certifi- 
cates in  excess  of  the  amount  which  the  corporation  has 
power  to  issue,  and  by  collusion  with  the  transferee  causes 
them  to  be  sold  to  a  bona  fide  purchaser  for  value,  the  cor- 
poration is  estopped  to  deny  the  authority  of  the  agent  to 
make  the  representation  that  the  stock  was  not  issued  in 
excess  of  its  authorized  amount.  The  purchaser  cannot, 
indeed,  by  estoppel,  acquire  the  rights  of  a  stockholder,  for 
the  stock,  being  issued  in  excess  of  the  charter  powers,  is 
void ;  but  he  may  recover  damages  against  the  principal  for 
the  agent's  fraud  in  an  action  of  tort.*8  So,  when  the  sec- 
retary and  treasurer  of  a  corporation,  who  was  also  its  agent 
for  the  transfer  of  stock,  and  authorized  to  countersign  and 
issue  stock  when  signed  by  the  president,  forged  the  name 

*T  New   York    &   N.    H.    R.   Co.    v.    Schuyler,   34    N.    Y.   30,    per 
Dwight,  J. 
48  New  York  &  N.  H.  R.  Co.  v.  Schuyler,  34  N.  Y.  30. 


§§  64-66)        LIABILITY  OF  PRINCIPAL  FOR  TORT   OF  AGENT.         293 

of  the  latter,  and  fraudulently  issued  a  certificate  to  one  who 
was  associated  with  him,  it  was  held  that  the  corporation, 
upon  its  refusal  to  recognize  the  certificate  as  valid,  was  lia- 
ble *in  damages  to  a  bank  which  accepted  the  certificate  in 
good  faith  as  security  for  a  loan.49  It  is  only  a  bona  fide 
purchaser  without  notice  who  can  assert  the  estoppel ;  a 
purchaser  directly  from  the  agent  in  whose  name  the  certifi- 
cate is  issued,  and  who  is  acting  in  his  individual  capacity  in 
the  sale,  is  bound  at  his  peril  to  investigate  his  title,  and 
to  assure  himself  that  the  legal  prerequisites  to  the  issuance 
of  the  stock  have  been  fulfilled.50  And  the  agent  must  be 
acting  within  an  apparent  authority  to  issue  certificates. 
Thus,  where  a  corporation  delivered  to  its  manager  surren- 
dered certificates  containing  blank  indorsements,  with  di- 

4«  Fifth  Ave.  Bank  v.  Railroad  Co.,  137  N.  Y.  231,  33  N.  E.  378, 
19  L.  R.  A.  331,  33  Am.  St  Rep.  712.  "It  Is  true,"  said  the  court, 
"that  the  secretary  and  transfer  agent  had  no  authority  to  issue  a 
certificate  of  stock  except  upon  the  surrender  and  cancellation  of  a 
previously  existing  valid  certificate,  and  the  signature  of  the  presi- 
dent and  treasurer  first  obtained  to  the  certificate  to  be  issued;  but 
these  were  facts  necessarily  and  peculiarly  within  the  knowledge  of 
the  secretary,  and  the  issue  of  the  certificate  in  due  form  was  a  rep- 
resentation by  the  secretary  and  transfer  agent  that  these  conditions 
had  been  complied  with,  and  that  the  facts  existed  upon  which  his 
right  to  act  depended.  It  was  a  certificate  apparently  made  in  the 
course  of  his  employment,  as  agent  of  the  company,  and  within  the 
scope  of  the  general  authority  conferred  upon  him;  and  the  defend- 
ant is  under  an  implied  obligation  to  make  indemnity  to  the  plaintiff 
for  the  loss  sustained  by  the  negligent  or  wrongful  exercise  by  its 
officers  of  the  general  powers  conferred  upon  them."  See,  also,  Al- 
len v.  Railroad  Co.,  150  Mass.  200,  22  N.  E.  917,  5  L.  R.  A.  716,  15 
Am.  St.  Rep.  185;  Tome  v.  Railroad  Co.,  39  Md.  36,  17  Am.  Rep. 
540;  Western  Maryland  R.  Co.  v.  Bank,  60  Md.  36;  Manhattan  Beach 
Co.  v.  Harned  (C.  C.)  27  Fed.  484;  Appeal  of  Kisterbock,  127  Pa. 
601,  18  Atl.  381,  14  Am.  St.  Rep.  868.  See  Clark,  Corp.  437-140, 
525-527. 

so  Moores  v.  Bank,  111  U.  S.  156,  4  Sup.  Ct.  345,  28  L.  Ed.  385; 
Farrington  v.  Railroad  Co.,  150  Mass.  40G,  23  N.  E.  109,  5  L.  R.  A. 
849,  15  Am.  St.  Rep.  222;  Bank  of  New  York  Nat.  Banking  Ass'n 
v.  Trust  Co.,  143  N.  Y.  559,  38  N.  E.  713. 


294  LIABILITY   OF  PRINCIPAL  TO  THIRD   PERSON.  (Ch.  11 

rections  to  cancel  them,  and  he  transferred  them  to  a  pur- 
chaser in  good  faith,  the  corporation  was  not  chargeable 
with  the  fraud.81 

This  principle  has  also  been  applied,  in  effect,  to  the  case 
of  a  local  agent  of  a  telegraph  company  who  was  also  the 
local  agent  of  an  express  company  at  the  same  place,  and 
who,  by  sending  a  forged  dispatch  to  a  merchant  requesting 
him  to  forward  money  to  his  correspondent  at  the  former 
place,  caused  the  money  to  be  sent  by  express,  and  in- 
tercepted and  converted  the  money.  It  was  held  that  the 
telegraph  company  was  liable,  it  being  the  business  of  the 
agent  to  send  dispatches  of  a  similar  character,  and  the  plain- 
tiff being  unable  to  know  the  circumstances  that  made  the 
particular  act  wrongful  and  unauthorized.8* 

The  application  of  the  principle  to  bills  of  lading  fraudu- 
lently issued  by  a  shipping  agent  without  receipt  of  the 
goods  has  already  been  considered.  Such  cases  have  usually 
arisen  upon  the  attempt  of  the  innocent  consignee  or  in- 
dorsee for  value  to  hold  the  principal  liable  upon  the  contract, 
and  not  in  tort  for  the  agent's  fraud,  but  if  the  action  is 
maintainable  in  the  one  form  it  would  seem  to  be  maintain- 
able in  the  other.  The  conflicting  decisions  have  been  cited 
elsewhere.88  In  the  Supreme  Court  of  the  United  States  it 
has  been  held  that  the  action  is  maintainable  neither  in  con- 
tract nor  on  the  ground  of  tort.6* 

BI  Knox  v.  American  Co.,  148  N.  T.  441,  42  N.  B.  988,  31  L.  R.  A. 
779,  51  Am.  St.  Rep.  700.  See,  also,  Manhattan  Life  Ins.  Co.  v. 
Railroad  Co.,  139  N.  Y.  146,  34  N.  E.  776;  Hill  v.  Publishing  Co., 
154  Mass.  172,  28  N.  E.  142,  13  L.  R.  A.  193,  26  Am.  St.  Rep.  230. 

52  McCord  v.  Telegraph  Co.,  39  Minn.  181,  39  N.  W.  315,  1  L.  R. 
A.  143,  12  Am.  St.  Rep.  636.  See,  also,  Bank  of  Palo  Alto  v.  Cable 
Co.  (C.  C.)  103  Fed.  841. 

ss  Ante,  p.  200. 

54  Friedlander  v.  Railway  Co.,  130  U.  S.  416,  9  Sup.  Ct  570,  32 
L.  Ed.  991.  Fuller,  IX  J.,  said:  "The  fraud  was  in  respect  to  a 
matter  within  the  scope  of  Easton's  employment  or  outside  of  It 
It  was  not  within  it,  for  bills  of  lading  could  only  be  issued  for 
merchandise  delivered;  and,  being  without  it,  the  company,  which 


§§  64-66)        LIABILITY  OP  PRINCIPAL  FOR  TORT  OF  AGENT.         295 

Same — Action  for  Deceit — Knowledge  of  Principal. 

Since  it  is  an  essential  element  of  deceit  that  the  person 
making  the  representation  have  knowledge  of  its  falsity  or 
else  make  it  in  reckless  disregard  whether  it  be  true  or  false, 
the  difficulty  of  holding  a  personally  innocent  principal  has 
presented  itself.  As  we  have  seen,  it  is  now  generally  held 
that  an  innocent  principal  is  liable  if  the  agent,  while  engaged 
in  a  transaction  which  as  against  the  person  injured  is  with- 
in the  scope  of  his  authority,  makes  the  representation  fraud- 
ulently.58 The  principal  difficulty  which  remains  lies  in  char- 
ging an  innocent  principal  where  the  agent  without  authority, 
but  innocently,  represents  a  fact  to  be  true  which  the  prin- 
cipal knows  is  false.  The  various  cases  which  may  arise 
may  be  stated  as  follows :  " 

If  the,  principal  knows  the  representation  to  be  false  and 
authorizes  it  to  be  made,  he  is  clearly  liable,  whatever  the 
knowledge  of  the  agent.  And  if  the  principal,  knowing  the 
contrary  of  the  representation  to  be  true,  does  not  authorize 
it,  but  the  agent,  in  a  transaction  which  must  be  deemed 
to  be  within  the  scope  of  his  authority,  makes  the  representa- 
tion knowing  it  to  be  false,  or  recklessly,  the  principal  is 
liable.87  In  this  state  of  facts,  if  the  agent  thinks  the  repre- 
sentation true,  the  question  is  presented  whether  the  princi- 
pal is  liable.  That  he  is  liable  if  he  fraudulently  keeps  back 
the  knowledge  from  the  agent  is  admitted ;  °8  but,  if  he 
holds  the  knowledge  back  inadvertently,  the  question  is  not 
free  from  doubt.  This  question  was  considered  in  the  fa- 
mous case  of  Cornfoot  v.  Fowke,89  where  an  agent  employed 
to  let  a  house,  on  being  asked  by  an  intending  lessee  whether 

derived  no  benefit  from  the  unauthorized  and  fraudulent  act,  cannot 
be  made  responsible." 

66  See  cases  cited  ante,  pp.  286-288. 

e«  See  laggard,  Torts,  267,  note  13,  following  Fraser,  Torts,  131. 

67  Per  Parke,  B.,  Cornfoot  v.  Fowkes,  6  M.  &  W.  358.    And  gee 
cases  cited  ante,  pp.  286-288. 

os  Admitted  in  Cornfoot  v.  Fowkes,  6  M.  &  W.  358. 
6»  6  M.  &  W.  358. 


296  LIABILITY  OF   PRINCIPAL  TO  THIRD   PERSON.  (Ch.  11 

there  was  any  objection  to  it,  said  there  was  not,  whereas, 
unknown  to  the  agent,  but  known  to  the  principal,  the  ad- 
joining house  was  a  brothel,  and  on  the  faith  of  the  represen- 
tation an  agreement  for  a  lease  was  entered  into.  In  an 
action  upon  the  agreement  by  the  lessor  for  nonperformance, 
the  lessee  pleaded  fraud.  It  was  held  that  the  plea  was  bad, 
although  it  would  have  been  good  if  the  principal  had  author- 
ized the  representation,  or  had  purposely  employed  an  ig- 
norant agent,  intending  that  the  question,  if  asked,  should 
be  answered  in  the  negative.  Alderson,  B.,  said:  "I  think 
it  impossible  to  sustain  a  charge  of  fraud,  when  neither  prin- 
cipal nor  agent  has  committed  any — the  principal,  because, 
though  he  knew  the  fact,  he  was  not  cognizant  of  the  mis- 
representation being  made  *  *  *;  and  the  agent,  be- 
cause, though  he  made  a  misrepresentation,  yet  he  did  not 
know  it  to  be  one  at  the  time  he  made  it,  but  gave  his  answer 
bona  fide."  Some  dicta  adverse  to  this  decision  are  to  be 
found.60  If  the  principal  is  to  be  held  in  such  a  case,  it  is  sub- 
mitted that  it  should  be  upon  the  ground  that  the  withholding 
from  the  agent  knowledge  so  material,  and  upon  which  the 
agent  is  likely  to  be  questioned,  is  such  reckless  disregard  of 
consequences  on  the  part  of  the  principal  as  to  be  justly  deemed 
equivalent  to  fraud,  much  as  a  false  statement  made  in  reck- 
less disregard  whether  it  be  true  or  false  is  deemed  to  be 
made  fraudulently.61 

We  have  been  considering  the  various  phases  that  may 
present  themselves  when  the  principal  knows  that  the  con- 

«o  See  Fuller  v.  Wilson,  3  Q.  B.  68,  1009;  Feret  v.  Hill,  15  C.  B. 
207;  National  Exchange  Co.  v.  Drew,  2  Macq.  103;  Ludgater  v. 
Love,  44  L.  T.  (N.  S.)  694;  Fitzsimmons  v.  Joslin,  21  Vt.  129,  52  Am. 
Dec.  46. 

"I  should  be  sorry  to  have  it  supposed  that  Cornfoot  v.  Fowkes 
turned  upon  anything  but  a  point  of  pleading."  Per  Willes,  JM  in 
Barwick  v.  English  Joint-Stock  Bank,  L.  R.  2  Ex.  259. 

«i  See  Pollock  (Webb's)  Torts,  386;  Mayer  v.  Dean,  115  N.  Y.  556, 
22  N.  E.  261,  5  L.  R.  A.  540.  But  see  Derry  v.  Peek,  14  App.  Cas. 
337. 


§  67)  LIABILITY   FOR  CRIMES.  297 

trary  of  the  representation  is  true.  If  he  believes  the  fact 
to  be  as  represented,  and  the  agent  makes  the  representa- 
tion in  that  belief,  whether  pursuant  to  express  authority, 
or  in  a  transaction  within  his  apparent  authority,  the  prin- 
cipal is  not  liable ;  but  in  either  case,  if  the  agent  makes 
the  representation  knowing  it  to  be  false,  or  recklessly,  the 
principal  is  liable.'2  In  many  cases,  of  course,  the  principal 
is  without  knowledge  as  to  the  facts  represented,  and  if  in 
such  case  the  agent  makes  the  representation  knowing  it  to 
be  false,  or  recklessly,  the  result  must  be  the  same ;  although 
he  is  not  liable  if  the  agent  reasonably  believes  it  to  be  true, 
unless  the  principal,  without  knowing  whether  it  were  true 
or  false,  authorized  it  to  be  made.  Thus,  the  principal  is 
liable  in  all  possible  cases,  unless  it  be  the  case  considered 
in  Cornfoot  v.  Fowke,  except  when  both  he  and  the  agent 
believe  the  agent's  representation  to  be  true. 

LIABILITY  FOR  CRIMES. 

67.  The  principal,  or  master,  is  not  criminally  liable  for  the 
act  of  his  agent,  or  servant,  unless  he  has  actually 
previously  authorized  or  assented  to  it. 

EXCEPTIONS:  (a)  In  cases  of  libel  and  nuisance  the  master 
is  liable,  under  certain  circumstances,  for  the  act  of 
his  servants  upon  the  ground  of  his  negligence  in 
failing  to  exercise  proper  control  over  them; 

(b)  Under  some  statutes  the  principal  or  master  is  liable  for 
prohibited  acts  notwithstanding  that  they  are  done 
by  his  agents  or  servants  -without  his  authority  or 
contrary  to  his  instructions. 1 

In  General. 

As  a  rule  the  principal,  or  master,  is  not  criminally  liable 
for  the  acts  of  his  agent  or  servant  which  he  has  not  previ- 
ously authorized  or  assented  to.2  He  cannot  become  liable 

•2  See  cases  cited  ante.  pp.  286-288. 

§  67.     i  The  discussion  of  the  principal's  liability  for  his  agent's 
crimes  follows  Clark,  Crim.  Law  (Tiffany's  2d  Ed.)  117  et  seq. 
*  Chisholm  v.  Doulton,  22  Q.  B.  D.  734,  741. 


298  LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSON.          (Ch.  11 

by  ratification,3  nor  does  the  fact  that  an  act  was  committed 
by  the  agent  or  servant  in  the  course  of  the  employment 
and  for  his  benefit  render  the  employer  liable.4  Criminal 
liability  must  rest,  except  in  exceptional  cases,  upon  the 
ground  of  assent,  for  otherwise  the  mental  element  necessary 
to  make  the  act  a  crime  is  lacking. 

Agent's  Act  as  Evidence  of  Authority. 

From  the  mere  fact  of  employment  to  conduct  a  lawful 
business  there  can  be  no  presumption  of  authority  to  com- 
mit unlawful  acts.6  It  has,  however,  often  been  declared 
that  under  some  circumstances  the  performance  of  an  un- 
lawful act  by  an  agent  or  servant  in  the  course  of  his  em- 
ployment upon  the  employer's  premises  is  sufficient  to  raise  a 
presumption  of  fact  that  the  act  was  authorized.  Thus, 
where  the  defendant  was  indicted  for  publishing  a  libel  (Juni- 
us'  Letters)  in  a  magazine,  which  professed  to  be  printed  by 
him,  and  was  sold  in  his  shop  by  his  servant,  it  was  held  that 
this  was  prima  facie  evidence  of  publication  by  the  defendant.6 
So  it  has  been  held  of  a  sale  of  spirituous  liquors  by  a  clerk  in 
the  absence  of  the  principal,  in  violation  of  a  statute  forbid- 
ding sale  without  license.7  It  seems,  however,  that  while 
such  evidence  may  warrant  an  inference  of  authority,  which 
would  justify  a  jury  in  so  finding,  it  is  not  correct  to  say  that 

•  Morse  v.  State,  6  Conn.  9.     Of.  Reg.  v.  Woodward.  9  Cox,  C. 
C.  95. 

*  Com.  v.  Nichols,  10  Mete.  (Mass.)  259,  43  Am.  Dec.  432;    Com. 
v.  Briant,  142  Mass.  463,  8  N.  E.  338,  56  Am.  Rep.  707;    State  v. 
Bacon,  40  Vt  456. 

5  Com.  v.  Briaiit,  142  Mass.  463,  8  N.  E.  338,  56  Am.  Rep.  707; 
State  v.  Mahoney,  23  Minn.  181;  State  v.  Burke,  15  R.  I.  324,  4  Atl. 
761. 

«  Rex  v.  Almon,  5  Burrows,  2686. 

i  Com.  v.  Nichols,  10  Mete.  (Mass.)  259,  43  Am.  Dec.  432;  Barnes 
v.  State,  19  Conn.  398;  Anderson  v.  State,  22  Ohio  St  305;  State 
v.  McCance,  110  Mo.  398,  19  S.  W.  648  (under  statute  providing  that 
agent's  sale  should  be  taken  to  be  act  of  principal);  State  v.  Weber, 
111  Mo.  204,  20  S.  W.  33;  Fullwood  v.  State,  67  Miss.  554,  7  South. 
432. 


§  67)  LIABILITY   FOE  CBIMES.  299 

it  creates  a  presumption  of  fact.8  Whatever  the  weight  of 
such  evidence,  unless  it  is  made  conclusive  by  statute,  it  may 
be  shown  in  defense  that  the  act  was  in  fact  unauthorized,  as 
by  proof  of  general  instructions  to  the  contrary.9 

Negligence. 

In  certain  cases,  in  exception  to  the  general  rule,  the 
master  is  held  liable  for  the  acts  of  his  servant  upon  the 
ground  of  negligence.  In  libel  an  exceptional  responsibility 
has  been  held  to  rest  upon  booksellers  and  publishers  re- 
specting publications  issued  from  their  establishments  in  the 
regular  course  of  business.  In  England  evidence  of  such 
a  sale  was  at  one  time  held  to  be  conclusive  evidence  of 
authority,  upon  the  ground  that  it  was  necessary  to  prevent 
the  escape  of  the  real  offender  behind  an  irresponsible  party.10 
In  this  country  the  liability  of  the  master  has  been  placed 
upon  the  ground  of  negligence  or  culpable  neglect  to  exer- 
cise proper  care  and  supervision  over  persons  in  his  employ. 
It  is  therefore  open  to  him  in  defense  to  show  that  the  publi- 
cation was  made  under  such  circumstances  as  to  negative  any 
inference  of  privity,  connivance,  or  want  of  ordinary  care, 
as  by  showing  that  he  was  absent,  or  confined  by  sickness, 
and  unable  to  exercise  proper  care  and  supervision.11  So,  in 
nuisance,  a  large  responsibility  has  been  recognized.  Lia- 
bility in  such  cases  may  sometimes  rest  on  the  ground  of 

s  No  such  presumption  is  created  by  a  single  unlawful  sale  to  an 
habitual  drunkard  or  a  minor.  State  v.  Mahoney,  23  Minn.  181. 

•  Com.  v.  Wachendorf,  141  Mass.  270,  4  N.  E.  817;  Com.  v.  Joslin, 
158  Mass.  482,  33  N.  E.  653,  21  L.  R.  A.  449. 

Otherwise  If  It  appeared  that  the  instructions  were  merely  color- 
able. State  v.  Mueller,  38  Minn.  497,  38  N.  W.  691. 

10  Rex  v.  Gutch,  Moody  &  M.  433;   Rex  v.  Walter,  3  Esp.  21. 

By  the  earlier  decisions  It  was  held  only  prima  facie.  Rex  v.  Al- 
mon,  5  Burrows,  2686. 

By  statute  the  accused  may  show  that  the  publication  was  not 
made  by  authority,  and  was  not  due  to  want  of  due  care,  6  &  7 
Viet  c.  96. 

11  Com.  v.  Morgan,  107  Mass.  199. 


300  LIABILITY   OF  PRINCIPAL,  TO   THIRD   PERSON.  (Ch-  11 

responsibility  for  the  reasonable  and  natural  consequence  of 
acts  commanded — a  responsibility  which  attaches  even  when 
the  relation  is  that  of  employer  and  independent  contractor.12 

Statutory  Offenses. 

Many  statutes  impose  punishment  irrespective  of  any  intent 
to  violate  them,  and  notwithstanding  ignorance  or  mistake 
of  fact  which  in  the  case  of  common-law  crimes  would  be  an 
excuse.13  There  are  statutes,  most  of  them  having  for  their 
object  the  regulation  of  the  sale  of  intoxicating  liquors,  which 
prohibit  the  doing  of  certain  acts  by  certain  classes  of  per- 
sons or  in  certain  places,  and  which  either  expressly  or  by  im- 
plication provide  that  such  persons  or  the  proprietors  of  such 
places  shall  be  responsible  for  such  acts,  although  committed 
without  their  knowledge,  or  even  contrary  to  their  instruc- 
tions, by  their  subordinates.  Such  are  many  of  the  statutes 
prohibiting  the  sale  of  intoxicating  liquors  without  license, 
or  in  violation  of  the  conditions  of  the  license,  or  to  minors 
or  intoxicated  persons,  or  prohibiting  saloons  to  be  kept 
open  on  Sunday  or  after  a  certain  hour,  or  forbidding  the 
windows  of  saloons  to  be  curtained.  It  requires  a  clear 
expression  of  intention  on  the  part  of  the  legislature  to  justify 
a  construction  of  a  statute  as  imposing  a  penalty  upon  a 
person  for  an  act  which  he  has  not  authorized  or  has  for- 
bidden, and,  unless  the  intention  clearly  appears,  the  rule  that 
a  man  is  not  criminally  liable  for  acts  which  he  has  not  au- 
thorized must  prevail ; 14  but  where  the  statute  does  so  provide 

12  Rex  v.  Medley,  6  Car.  &  P.  292.  See  Rex  v.  Dixon,  3  M.  & 
S.  11. 

In  Reg.  v.  Stephens,  L.  R.  1  Q.  B.  702,  it  was  held  that  the  owner 
of  a  quarry  was  liable  for  a  nuisance  consisting  in  obstructing  a 
public  river  by  casting  into  it  stone  and  rubbish,  although  this  was 
done  by  his  workmen  without  his  knowledge  and  against  his  gen- 
eral orders,  and,  by  reason  of  his  age,  he  was  unable  to  exercise 
supervision.  The  case  was  explained  on  the  ground  that  the  pro- 
ceeding, although  in  its  form  criminal,  was  in  its  nature  civil. 

is  Clark,  Crim.  Law  (2d  Ed.)  84. 

»*  Com.  v.  Nichols,  10  Mete.  (Mass.)  259,  43  Am.  Dec.  432;  Com. 
y.  Wachendorf,  141  Mass.  270,  4  N.  E.  817. 


§  67)  LIABILITY    FOR   CRIMES.  301 

it  is  valid.1*  There  is  much  conflict,  real  or  apparent,  in  the 
decisions,  and  different  constructions  have  been  placed  by 
different  courts  upon  similar  enactments.  The  question  for 
determination  in  each  case  must  be  whether  it  was  the  in- 
tention of  the  statute  to  require  persons  of  the  designated 
class  to  see  to  it,  at  their  peril,  that  the  prohibited  acts  are 
not  committed.18 

«  People  v.  Roby,  52  Mich.  577,  18  N.  W.  365,  50  Am.  Rep.  270; 
People  v.  Blake,  52  Mich.  566,  18  N.  W.  360;  George  v.  Gobey,  128 
Mass.  289,  35  Am.  Rep.  376;  Com.  v.  Kelley,  140  Mass.  441,  5  N. 
E.  834;  Carroll  v.  State,  63  Md.  551,  3  Atl.  29;  State  v.  Denoon,  31 
W.  Va.  122,  5  S.  E.  315;  Boatright  v.  State,  77  Ga.  717;  State  v. 
Klttelle,  110  N.  C.  560,  15  S.  E.  103,  15  L.  R.  A.  694,  28  Am.  St. 
Rep.  698;  Noecker  v.  People,  91  111.  494;  Mogler  v.  State,  47  Ark 
109,  14  S.  W.  473. 

i«  Under  a  statute  requiring  saloons  to  be  closed  on  Sunday,  it 
was  held  that  the  penalties  of  the  statute  were  denounced  against 
the  person  whose  saloon  is  not  kept  closed,  and  that  no  other  fact 
than  that  it  was  not  kept  closed  was  necessary  to  complete  the  of- 
fense. State  v.  Roby,  52  Mich.  577,  18  N.  W.  365,  50  Am.  Rep.  270. 
Cf.  People  v.  Parks,  49  Mich.  333,  13  N.  W.  618,  and  People  v. 
Welch,  71  Mich.  548,  39  N.  W.  747,  1  L.  R.  A.  385,  where  the  stat- 
utes involved  were  differently  construed. 

Under  a  statute  providing  that  no  licensee  of  a  saloon  shall  place 
or  maintain,  or  permit  to  be  placed  or  maintained,  on  the  premises, 
any  screen  or  curtain,  it  was  held  that  a  licensee  was  liable  for  a 
screen  or  curtain  which  a  servant  maintained  in  his  absence  against 
his  orders,  on  the  ground  that  the  statute  by  fair  intendment  made 
the  licensee  responsible  for  the  condition  of  his  premises,  and  liable 
whether  the  prohibited  act  was  done  by  him  personally  or  by  his 
agent  left  in  charge  of  the  business.  Com.  v.  Kelley,  140  Mass.  441, 
5  N.  E.  834.  Cf.  Com.  v.  Wachendorf,  141  Mass.  270,  4  N.  E.  817. 


302  LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.          (Cll.  12 

CHAPTER  XH. 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL. 

68.  Contract— Contract  in  Name  of  Principal. 

69.  Defenses. 

70.  Contract  on  Behalf  of  Undisclosed  Principal. 

71.  Defenses  Against  Undisclosed  Principal. 

72.  Quasi  Contract. 

73-76.     Torts— Property  Wrongfully  Disposed  of. 

77.  Following  Trust  Funds. 

78.  Fraud  and  Deceit. 

79.  Collusion  with  Agent. 

80.  Loss  of  Service  Caused  by  Wrongful  Act. 

CONTRACT— CONTRACT  IN  NAME  OF  PRINCIPAL. 

68.  A  party  to  a  contract  made  by  an  agent  in  the  name  of 

his  principal  is  liable  thereon  to  the  principal,  who 
alone  may  maintain  an  action  thereon. 

SAME— DEFENSES. 

69.  In   an   action  by  the    principal   upon   such    contract,   the 

fraud,  misrepresentation,  or  knowledge  of  the  agent 
may  be  set  up  by  way  of  defense  in  the  same  manner 
as  the  fraud,  misrepresentation,  or  knowledge  of  the 
principal  might  have  been  if  he  had  himself  made  the 
contract. 

Since  the  principal  is  bound  by  a  contract  made  in  his  name 
by  an  agent  acting  within  the  scope  of  his  authority,  a  recip- 
rocal obligation  arises  in  the  principal's  favor  against  the 
other  party  to  the  contract,  and  the  principal,  and  he  alone, 
may  maintain  an  action  to  enforce  it.1  What  contracts  are 
to  be  deemed  made  in  the  name  of  the  principal  will  be  con- 

§§  68-69.  i  Fairlie  v.  Fenton,  L.  R.  5  Ex.  169;  Lamson  &  Good- 
now  Mfg.  Co.  v.  Russell,  112  Mass.  387;  Sharp  v.  Jones,  18  Ind.  314, 
81  Am.  Dec.  359;  Story,  Ag.  §  419. 


§§  70-71)      CONTRACT  FOR  UNDISCLOSED  PRINCIPAL.  303 

sidered  hereafter.1  And  although  the  contract  when  made 
be  unauthorized,  the  principal  becomes  bound  by  ratifying  it, 
and  in  that  event  he,  and  he  alone,  may  maintain  an  action 
against  the  other  party  upon  the  contract.8 

Defenses. 

The  principal,  while  entitled  to  the  benefits  of  the  contract, 
must  take  it  subject  to  its  attendant  burdens.  If  it  contains 
any  terms  which  are  unauthorized,  the  principal  must  adopt 
it  as  it  was  made,  or  not  at  all.4  If  the  other  party  was  in- 
duced to  enter  into  it  by  the  agent's  fraud,  the  other  party 
may  defend  upon  that  ground.5  The  principal  is  bound  by 
the  agent's  knowledge,  and  the  effect  of  imputing  the  knowl- 
edge of  the  agent  to  him  will,  of  course,  frequently  be  to 
render  the  contract  subject  to  defense.' 

CONTRACT    ON    BEHALF    OF    UNDISCLOSED    PRINCIPAL. 

7O.  A  party  to  a  contract  made  by  an  agent  in  his  own  name 
on  behalf  of  a  principal  whose  existence  was  undis- 
closed is  liable  thereon  to  the  principal,  who  may 
maintain  an  action  npon  the  contract  in  his  own  name. 
except— 

EXCEPTIONS:  (a)  UNDISCLOSED  PRINCIPAL  EX- 
CLUDED. Where,  by  the  express  or  implied  terms  of 
the  contract,  the  intention  of  the  other  party  to  con- 
tract only  with  the  ostensible  principal  is  indicated. 

(b)  CONTRACT  UNDER  SEAL.      Where  the  contract  is  by 

deed  or  other  instrument  nnder  seal. 

(c)  NEGOTIABLE  INSTRUMENT.      Where   the   contract   is 

by  negotiable  instrument. 

«  Post,  p.  330.  »  Ante,  p.  81.  «  Ante,  p.   61. 

•  Mullens  v.  Miller,  22  Ch.  D.  194;   Sandford  v.  Handy,  23  Wend. 
(N.  Y.)  260;   Mundorff  v.  Wickersham,  63  Pa.  87,  3  Am.  Rep.  531; 
Crump  v.  Mining  Co.,  7  Grat  (Va.)  352,  56  Am.  Dec.  116;    Union 
Trust  Co.  v.  Phillips,  7  S.  D.  225,  63  N.  W.  903, 

•  Ante,  p.  287. 


304  LIABILITY  OP  THIRD  PERSON  TO  PRINCIPAL.          (Ch.  12 


SAME- DEFENSES    AGAINST    UNDISCLOSED    PRINCIPAL. 

71.  In  an  action  by  the   principal  upon  a  contract  made   on 

his  behalf  by  his  agent  in  his  own  name,  the  other 
party  is  entitled  to  assert  every  eqnity  and  defense  to 
which  he  would  have  been  entitled  as  against  the 
agent,  and  which  existed  at  the  time  he  first  received 
notice  of  the  existence  of  the  agency. 

Liability  of  Other  Party  to   Undisclosed  Principal. 

Where  a  contract  is  made  by  an  agent  in  his  own  name 
on  behalf  of  an  undisclosed  principal,  although  the  existence 
of  the  agency  is  unknown  to  the  other  party,  the  principal 
may  hold  him  upon  the  contract  and  may  sue  upon  it.1  Sub- 
ject to  the  superior  right  of  the  principal,  the  agent  also  may 
sue  upon  it.2  "It  is  a  general  rule  that  whenever  an  express 
contract  is  made  an  action  is  maintainable  upon  it,  either  in 
the  name  of  the  person  with  whom  it  was  actually  made,  or 
in  the  name  of  the  person  with  whom  in  point  of  law  it  was 

§§  70-71.  i  Garratt  v.  Cullum  (1710)  stated  in  Scott  v.  Surman, 
Willes.  400;  Sadler  v.  Leigh,  4  Camp.  195;  Spurr  v.  Cass,  L.  R. 
5  Q.  B.  656:  Ford  v.  Williams,  21  How.  (U.  S.)  287,  16  L.  Ed.  36; 
New  Jersey  Steam  Nav.  Co.  v.  Bank,  6  How.  (U.  S.)  344,  380,  12  L. 
Ed.  465;  Darrow  v.  Produce  Co.  (C.  C.)  57  Fed.  463;  Huntington 
v.  Knox,  7  Cush.  (Mass.)  371;  Foster  v.  Graham,  166  Mass.  202,  44  N. 
E.  129;  Edwards  v.  Golding,  20  Vt.  30;  Elkins  v.  Railroad  Co.,  19 
N.  H.  337,  51  Am.  Dec.  184;  TaJntor  v.  Prendergast,  3  Hill  (N.  Y.) 

72,  38  Am.  Dec.   618;    Nicoll  v.   Burke,   78  N.   Y.  580;    Ludwig  v. 
Gillespie,  105  N.  Y.  653,  11  N.  E.  835;    Baltimore  Coal  Tar  &  Mfg. 
Co.  v.  Fletcher,  61  Md.  288:    Woodruff  v.  McGehee,  30  Ga.  158  (may 
recover  on  warranty);   Ames  v.  Railroad  Co.,  12  Minn.  413  (Gil.  295); 
Barham  v.  Bell,  112  N.  C.  131,  16  S.  E.  903. 

Where  S.,  a  solicitor,  practiced  in  the  name  of  S.  &  C.,  0.  being 
also  a  solicitor,  but  acting  as  S.'s  clerk,  S.,  being  real  principal,  was 
entitled  to  sue  on  a  contract  made  in  the  name  of  the  firm.  Spurr 
v.  Cass,  L.  R.  5  Q.  B.  656. 

Although  the  agent  stipulates  that  he  will  not  assign  the  contract, 
the  undisclosed  principal  may  sue  on  it  Prichard  v.  Budd,  22  C. 
C.  A.  504,  76  Fed,  710. 

t  Post,  p.  386, 


§§  70-71)      CONTRACT  FOB  UNDISCLOSED  PRINCIPAL.  305 

made."  *  The  right  of  the  agent  to  sue,  however,  is  sub- 
servient to  that  of  the  principal,  unless  the  agent  contracts 
in  respect  to  goods  upon  which  he  has  a  lien ;  *  and,  even 
if  the  agent  has  commenced  an  action,  the  principal  may 
still  intervene,  and  thereafter  the  right  of  the  agent  to  sue 
ceases.8  So  long  as  the  other  party  is  ignorant  of  the  rights 
of  the  real  principal,  he  may  safely  deal  with  the  agent  as 
principal;  but,  after  receiving  notice  of  the  principal's  rights, 
any  settlement  with  or  payment  to  the  agent  is  at  his  peril. 
The  right  of  the  undisclosed  principal  to  sue  is  not  affected 
by  the  fact  that  the  agent  was  acting  under  a  del  credere 
commission.9  As  in  the  converse  case  of  the  principal's  lia- 
bility, parol  evidence  is  admissible  to  show  who  is  the  real 
principal.7  "The  rights  and  liabilities  of  a  principal,  upon 
a  written  instrument  executed  by  his  agent,  do  not  depend 
upon  the  fact  of  the  agency  appearing  on  the  instrument  itself, 
but  upon  the  facts  (i)  that  the  act  is  done  in  the  exercise,  and 

«  Cothay  v.  Fennell.  10  B.  &  C.  671. 

In  that  case  Cothay  carried  on  business  in  London,  others  of  the 
plaintiffs  at  Glasgow,  and  the  rest  at  Manchester.  The  three  firms 
agreed  to  be  interested  in  a  purchase  of  Barbary  gum,  Cothay  to  be 
actual  purchaser,  and  he  gave  the  order.  It  was  contended  that  he 
alone  could  sue,  but  it  was  held  the  action  was  maintainable  by  all. 
"Cothay  may  be  considered  as  agent  for  the  Glasgow  and  Man- 
chester houses,"  said  the  court,  "or  they  may  be  treated  as  dormant 
partners  in  this  transaction;  and  a  dormant  partner  in  one  instance 
may  sue  as  well  as  a  dormant  partner  in  the  general  business  of  a 
mercantile  house." 

4  If  he  has  a  lien  on  the  goods  as  against  the  principal,  the  latter's 
right  to  sue  on  the  contract  is,  while  the  claim  of  the  agent  is  un- 
satisfied, subservient  to  that  of  the  agent,  and  payment  to  or  settle- 
ment with  the  agent  is  a  discharge,  notwithstanding  notice  not  to 
pay  or  settle  with  the  agent  Hudson  v.  Granger,  5  B.  &  Aid.  27. 
See  Bowstead,  Dig.  Ag.  art  96. 

»  Sadler  v.  Leigh,  4  Camp.  195. 

•  Hornby  v.  Lacy,  6  M.  &  S.  166. 

T  Ford  v.  Williams,  21  How.  (U.  S.)  287,  16  L.  Ed.  36;  Darrow 
r.  Produce  Co.  (C.  C.)  57  Fed.  463;  Huntington  v.  Knox,  7  Gush. 
(Mass.)  371. 

TTFF.P.&  A.— 20 


306  LIABILITY  OF  THIRD   PERSON  TO   PRINCIPAL.  (Ch.  12 

(2)  within  the  limits,  of  the  powers  delegated ;  and  these  are 
necessarily  inquirable  into  by  evidence."  8 

The  contract  must,  however,  be  on  behalf  of  the  principal 
solely,  and  not  on  behalf  of  him  and  another,  as  in  the  case 
of  a  sale  by  a  factor  of  his  own  goods  with  those  of  the  prin- 
cipal; for  in  such  case,  if  the  contract  is  entire  and  for  a 
gross  sum,  the  action  must  be  upon  the  contract  and  in  the 
name  of  the  agent,  and  the  principal  can  neither  sever  the 
contract  nor  maintain  an  action  for  the  value  of  the  portion 
belonging  to  him.* 

Where  Terms  of  Contract  Exclude  Undisclosed  Principal. 
While  a  party  to  a  contract  ordinarily  takes  the  chances 
of  the  existence  of  an  undisclosed  principal,  and  is  liable  to  be 
sued  by  such  principal  if  it  turns  out  that  the  contract  is 
made  on  his  behalf,  every  one  has  the  right  to  elect  with 
whom  he  will  contract;  and  if  his  intention  not  to  deal  with 
any  one  but  the  person  with  whom  he  purports  to  contract 
is  clearly  indicated,  the  intention  must  have  effect.10  The 
intention  may  be  shown  by  the  express  terms  of  the  agree- 
ment, or  may  be  implied  from  the  attendant  circumstances. 
Thus,  in  the  case  of  the  charter  party  already  referred  to,11 
where  the  agent  described  himself  as  owner  of  the  chartered 
vessel,  it  was  held  that  the  undisclosed  principal  and  real 
owner  was  not  entitled  to  show  that  the  agent  contracted 
on  his  behalf  so  as  to  enable  him  to  maintain  an  action  upon 
the  contract.  Such  evidence  was  inadmissible  as  contradic- 
tory to  the  statement  that  the  party  who  executed  the  con- 
tract was  the  owner  of  the  vessel ;  but  the  evidence  was  in- 

•  Huntington  v.  Knox,  7  Gush.  (Mass.)  371. 

•  Roosevelt  v.  Doherty,  129  Mass.  301,  37  Am.  Rep.  356.    Of.  St. 
Louis,  K.  C.  &  N.  Ry.  Co.  v.  Thacher,  13  Kan.  564;   Talcott  v.  Rail- 
road Co.,  159  N.  Y.  461,  54  N.  E.  1. 

10  Humble  v.  Hunter,  12  Q.  B.  310;    Winchester  v.  Howard,  97 
Mass.  303,  93  Am.  Dec.  93.     See,  also,  King  v.  Batterson,  13  R.  I. 
117,  43  Am.  Rep.  13;   Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  25  Am. 
Rep.  9. 

11  Humble  v.  Hunter.  12  Q.  B.  310.    Ante,  p.  234. 


§§  70-71)      CONTRACT  FOB  UNDISCLOSED  PRINCIPAL.  307 

admissible  upon  the  broader  ground  that  by  the  terms  of  the 
contract  the  defendant  had  expressed  his  intention  to  give 
credit  only  to  the  person  describing  himself  as  owner.  "You 
have  a  right,"  said  Lord  Denman,  "to  the  benefit  you  con- 
template from  the  character,  credit,  and  substance  of  the 
party  with  whom  you  contract."  The  principle  is  the  same 
when  the  contract  is  oral,  as  where  upon  a  contract  of  sale 
the  person  with  whom  the  buyer  deals  represents  himself  to 
be  owner,  and  denies  that  another  person,  with  whom  the 
buyer  expresses  unwillingness  to  deal,  but  who  is  in  truth 
owner  and  principal,  is  such.1*  On  the  other  hand,  where 
the  real  principal  contracts  as  ostensible  agent  of  an  unnamed 
principal,  it  has  been  held  that  he  can  sue  upon  the  contract, 
since,  the  supposed  principal  being  unnamed,  the  other  party 
cannot  have  contracted  in  reliance  upon  him  personally.18 

Where  the  nature  of  the  contract  is  such  that  the  person- 
ality of  the  ostensible  principal  is  or  may  be  of  importance, 
as  where  his  character,  skill,  or  solvency  is  an  essential  ele- 
ment of  the  performance  contemplated,  it  is,  of  course,  clear 
that  the  law  cannot  confer  upon  the  undisclosed  principal  the 
right  to  perform.14  Yet,  even  in  such  case,  if  the  contract  is 
not  by  its  terms  made  solely  with  the  ostensible  principal 
to  the  exclusion  of  any  other  principal,  and  if  the  facts  sur- 
rounding the  making  of  the  contract  are  not  such  as  to  show 
an  intention  to  deal  with  the  ostensible  principal  exclusively, 
after  the  contract  has  been  performed  according  to  its  terms, 
the  undisclosed  principal  may  maintain  an  action  upon  it  to 
recover  the  price  or  otherwise  to  enforce  performance  of 
the  other  party's  part  of  the  contract.15 

i*  Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  93. 

*«  Schmaltz  v.  A  very,  16  Q.  B.  655;   post,  p.  392. 

"  Kelly  v.  Thuey,  102  Mo.  522,  15  S.  W.  62.  But  see  Id.,  143  Mo. 
422,  45  S.  W.  301;  post,  p.  391. 

i»Grojan  v.  White,  2  Stark.  443;  Sullivan  v.  Shailor,  70  Conn. 
733,  40  Atl.  1054;  Warder  v.  White,  14  HI.  App.  50.  See,  also, 
Wiehle  v.  Safford,  27  Misc.  Rep.  562,  58  N.  Y.  Supp.  298. 


508  LIABILITY  OP  THIRD  PERSON  TO  PRINCIPAL.          (Ch.  12 

Contract  under  Seal. 

As  has  been  stated,16  if  the  contract  is  under  seal,  an  un- 
disclosed principal,  not  being  a  party  to  it,  cannot  maintain 
an  action  thereon  in  his  own  name.11 

Negotiable  Instrument. 

As  already  explained,  no  one  who  is  not  named  in  or  de- 
scribed as  a  party  to  a  negotiable  instrument  can  sue  upon 
it.18  Hence  if  the  instrument  is  payable  to  order,  and  has 
not  been  indorsed  in  blank,  only  the  original  payee  or  the 
person  to  whom  it  has  been  specially  indorsed  can  maintain 
an  action  upon  it.1'  And  if  a  negotiable  bill  or  note  is  made 
to  one  who  is  in  fact  an  agent  as  payee,  or  is  indorsed  to  him, 
an  undisclosed  principal  cannot  sue.20  An  apparent  excep- 
tion to  the  rule  requiring  the  party  to  be  named  or  described 
exists  where  the  payee  or  indorsee  is  intended  to  be  a  bank, 
or,  according  to  some  decisions,  another  corporation,  which 
is  described  by  the  name  and  title  of  its  cashier,  or  managing 
officer,  as  "A.  B.,  Cashier,"  or  "A.  B.,  President,"  such  desig- 
nation being  deemed  equivalent  to  the  designation  of  the  bank 
or  corporation.  In  such  case  the  bank  or  corporation  may 
sue.21 

IB  Ante,  p.  243. 

if  Scnoch.  v.  Anthony,  1  M.  &  S.  573;  Berkeley  v.  Hardy,  8  D.  & 
R.  102;  Spencer  v.  Field,  10  Wend.  (N.  Y.)  88;  Schaefer  v.  Henkel, 
75  N.  Y.  378;  Henricus  v.  Englert,  137  N.  Y.  488,  33  N.  E.  550; 
Smith  v.  Pierce,  45  App.  Div.  628,  60  N.  Y.  Supp.  1011  (even  though 
seal  not  essential). 

is  Ante,  p.  244. 

i»  Norton,  Bills  &  N.  (3d  Ed.)  212;  Daniels,  Neg.  Instr.  §  692. 

20  Grist  \.  Backhouse,  20  N.  C.  496;  United  States  Bank  v.  Lyinan, 
20  Vt.  666,  Fed.  Cas.  No.  924;   Fuller  v.  Hooper,  3  Gray  (Mass.)  341. 
Otherwise  if  note  is  not  negotiable.     National  Life  Ins.  Co.  v.  Allen, 
116  Mass.  398. 

21  Baldwin  v.  Bank,  1  Wall.  (U.  S.)  234,  17  L.  Ed.  534;   First  Nat 
Bank  v.  Hall,  44  N.  Y.  395.  4  Am.  Rep.  698;    Commercial  Bank  v. 
French,  21  Pick.  (Mass.)  486,  32  Am.  Dec.  280. 


§§  70-71)      CONTRACT  FOR  UNDISCLOSED  PRINCIPAL.  809 

How  far  Principal  Object  to  Defenses  against  Agent. 

It  is  obvious  that  if  an  undisclosed  principal  can  enforce 
his  rights  upon  a  contract  made  by  his  agent,  acting  osten- 
sibly as  principal,  without  regard  to  the  defenses  which  might 
be  available  to  the  other  party,  were  the  action  brought 
by  the  person  with  whom  he  believed  himself  to  be  dealing 
as  principal,  grave  injustice  would  result.  If,  for  example, 
the  buyer  has  paid  the  factor  of  the  seller  while  still  be- 
lieving him  to  be  the  principal,  or  if  at  the  time  he  entered  into 
the  contract  the  factor  was  his  debtor,  it  would  be  contrary 
to  common  sense  and  justice  to  allow  the  undisclosed  prin- 
cipal in  the  one  case  to  enforce  a  second  payment  from  the 
buyer,  and  in  the  other  to  deprive  him  of  the  right  to  set  off 
against  the  price  of  the  goods  the  debt  which  he  may  have 
rightfully  intended  to  set  off  when  he  made  the  contract. 
It  may,  therefore,  be  laid  down  as  a  general  rule  that  in  an 
action  by  the  undisclosed  principal  the  other  party  to  the  con- 
tract is  entitled  to  all  equities  and  defenses  which  existed  in 
his  favor  against  the  agent  at  the  time  when  the  existence 
of  the  agency  was  first  disclosed.  The  most  frequent  ap- 
plication of  this  rule  has  been  in  cases  of  sales  by  factors 
or  other  agents  intrusted  with  the  possession  of  the  goods, 
where  the  buyer  has  been  entitled  to  set  off  a  debt  due  from 
the  agent,  when  sued  by  the  principal  for  the  price.22 

"Where  a  factor,"  said  Lord  Mansfield,  "dealing  for  a  prin- 
cipal, but  concealing  that  principal,  delivers  goods  in  his 
name,  the  person  contracting  with  him  has  a  right  to  consider 
him  to  all  intents  and  purposes  as  the  principal ;  and,  though 
the  real  principal  may  appear  and  bring  an  action  upon  that 
contract  against  the  purchaser  of  the  goods,  yet  that  pur- 
chaser may  set  off  any  claim  he  may  have  against  the  factor 

«  Rabone  v.  Williams  (1785)  7  T.  R.  360.  note  a;  George  v.  Clagett 
7  T.  R.  359;  Carr  v.  Hinchcliffe,  7  D.  &  R.  42;  Ex  parte  Dlxon,  4 
Ch.  D.  133;  Hogan  v.  Shorb,  24  Wend.  (U.  S.)  458;  Pollacek  v. 
Scholl,  51  App.  Div.  319,  64  N.  Y.  Supp.  979;  Frame  v.  Coal  Co.,  97 
Pa.  309;  Gardner  v.  Allen,  6  Ala.  187,  41  Am.  Dec.  45.  See,  also, 
Wiser  v.  Mining  Co.,  94  111.  App.  471. 


310  LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.          (Ch.  12 

in  answer  to  the  demand  of  the  principal.  This  has  been 
long  settled."  2S  The  set-off  need  not  exist  at  the  time  of 
sale ;  it  is  sufficient  if  it  arise  before  notice  of  the  agency.24 
If  it  arises  after  notice,  it  cannot  be  asserted.25  So  payment 
to  the  factor  or  other  agent  before  notice  of  the  existence 
of  an  undisclosed  principal  discharges  the  buyer  from  further 
liability,26  but  not  payment  after  notice.27  Notice  may  be 
communicated  directly  by  the  principal's  assertion  of  his 
demand.28  It  may,  however,  be  communicated  at  the  time 
the  contract  is  made  by  circumstances  affecting  the  other 
party  with  notice.29  Where  the  other  party  knows  that  he 
is  dealing  with  an  agent,  although  he  does  not  know  who 
the  principal  is,  he  is  not  protected.80  Ordinarily,  indeed, 

«  Rabone  v.  Williams  [1785]  7  T.  R.  360,  note  a. 

«<  Baxter  v.  Sherman,  73  Minn.  434.  438,  76  N.  W.  211,  72  Am. 
St.  Rep.  631. 

2s  Dresser  v.  Norwood,  17  O.  B.  (N.  S.)  466;  Cooke  v.  Eshelby,  12 
App.  Cas.  271;  Mildred  v.  Maspons,  8  App.  Cas.  874;  Baxter  v. 
Sherman,  73  Minn.  434,  76  N.  W.  211,  72  Am.  St.  Rep.  631. 

26  Coates  v.  Lewis,  1  Camp.  444;   Ramazotti  v.  Bo  wring,  7  C.  B. 
(N.  S.)  851  (receiving  goods  in  payment  of  debt);   Dubois  v.  Perkins, 
21  Or.  189,  27  Pac.  1044. 

27  Pitts  v.  Mower.  18  Me.  361,  36  Am.  Dec.  727;   Henderson,  Hull 
&  Co.  v.  McNally,     '}  App.  Div.  134,  62  N.  Y.  Supp.  582;    Rice  & 
Bullen  Malting  Co.  v.  Bank,  185  111.  422,  56  N.  B.  1063. 

28  Henderson,  Hull  &  Co.  v.  McNally,  48  App.  Div.  134,  62  N.  Y. 
Supp.  582. 

29  Mildred  v.  Maspons,  8  App.  Cas.  874;    Wright  v.  Cabot,  89  N. 
Y.  570. 

so  Fish  v.  Kempton,  7  C.  B.  687;  Semenza  v.  Brinsley,  18  C.  B. 
(N.  S.)  467;  Dresser  v.  Norwood,  17  C.  B.  (N.  S.)  466  (buyer  bound 
by  knowledge  on  part  of  his  broker  that  factor  sold  on  behalf  of 
principal);  Traub  v.  Milliken,  57  Me.  67,  2  Am.  Rep.  14;  Rosser  v. 
Darden,  82  Ga.  219,  7  S.  E.  919,  14  Am.  St  Rep.  152. 

Where  a  citizen  of  Massachusetts  sold  goods  in  that  state  to  an- 
other citizen,  but  disclosed  that  the  goods  belonged  to  plaintiff,  a 
citizen  of  Maine,  without  disclosing  his  name,  a  subsequent  dis- 
charge in  bankruptcy  of  the  buyer  under  the  insolvent  laws  of 
Massachusetts  was  not  a  bar  to  an  action  for  the  price.  Ilsley  v. 
Merriam,  7  Cush.  (Mass.)  242,  54  Am.  Dec.  721. 


§§  70-71)      CONTRACT  FOR  UNDISCLOSED  PRINCIPAL.  311 

it  is  sufficient  to  protect  the  other  party  that  he  had  not 
knowledge  of  the  existence  of  an  undisclosed  principal,  and 
mere  means  of  knowledge  is  not  enough ; §1  but,  if  circum- 
stances are  brought  to  his  knowledge  which  render  the  char- 
acter of  the  supposed  principal  equivocal,  he  is  put  upon  in- 
quiry to  ascertain  in  what  character  the  other  acts,  and  if 
he  makes  no  inquiry  is  charged  with  notice  of  the  agency.82 
Thus,  where  a  cotton  broker,  who  was  intrusted  by  his  prin- 
cipal with  the  possession  of  the  goods,  sold  them  in  his  own 
name  without  disclosing  the  existence  of  the  principal,  but 
the  buyer  knew  that  he  sometimes  sold  in  his  own  name 
though  acting  as  broker,  and  sometimes  sold  goods  of  his 
own,  and  the  buyer  in  this  case  had  no  particular  belief  ei- 
ther way,  it  was  held  that  he  was  not  entitled  in  an  action  by 
the  principal  for  the  price  to  set  off  a  debt  due  from  the 
broker.88 

The  right  to  set  off  a  debt  due  from  the  agent  is  not  con- 
fined to  sales  by  factors  and  other  agents  intrusted  with 
possession,  but  extends  to  other  contracts  where  the  agent 
is  authorized  to  receive  money  for  his  principal.  Thus,  where 
the  plaintiffs  employed  a  merchant  firm  to  collect  general 
average  contributions  under  an  insurance  policy,  and  the 
firm  employed  the  defendants  as  brokers,  who  collected  in 
the  belief  that  they  were  employed  by  the  firm  as  principals, 
and  the  firm  became  bankrupt,  it  was  held  in  an  action  for  the 
contributions  as  money  had  and  received  to  the  plaintiffs' 
use  that  the  defendants  were  entitled  to  set  off  a  debt  due 
from  the  firm.84 

It  is  said  that  the  right  of  the  buyer  who  has  dealt  with 

«i  Borries  v.  Imperial  Ottoman  Bank,  L.  R.  9  O.  P.  38;  Pratt  v. 
Collins,  20  Hun  (N.  Y.)  126. 

»2  Cooke  v.  Eshelby,  12  App.  Gas.  271:  Baxter  v.  Sherman,  73 
Minn.  436,  76  N.  W.  211,  72  Am.  St.  Rep.  631;  Miller  v.  Lea,  35 
Md.  396,  406,  6  Am.  Dec.  417;  Mull  v.  Ingalls,  62  N.  Y.  Supp.  830. 
Cf .  Scaling  v.  Knolling,  94  111.  App.  443. 

»s  Cooke  v.  Eshelby,  12  App.  Cas.  271. 

»«  Montague  v.  Forwood  [1893]  2  Q.  B.  351. 


312  LIABILITY  OF  THIRD  PERSON  TO   PRINCIPAL.  (Ch.  12 

the  factor  or  other  agent  as  principal  to  set  off  a  debt  due 
from  the  agent  rests  upon  estoppel,  and  that  to  establish 
such  an  estoppel  the  party  asserting  it  must  show  that  he  was 
led  by  the  conduct  of  the  principal  to  believe,  and  did  believe, 
that  the  ostensible  principal  was  such.36  Clearly,  if  the  prin- 
cipal has  expressly  or  by  implication,  as  in  the  case  of  a 
factor  employed  to  sell,  authorized  his  agent  to  contract  in 
his  own  name,  the  principal  would  be  estopped  from  assert- 
ing rights  under  the  contract  inconsistent  with  the  represen- 
tation which  he  has  authorized  to  be  made.  Yet  a  purchaser 
from  a  factor  without  notice  that  he  is  not  the  principal  has 
the  right  to  set  off  a  debt  due  from  the  factor,  notwithstand- 
ing that  in  selling  in  his  own  name  the  factor  acts  in  contra- 
vention of  express  directions.86  It  would  seem,  therefore, 
that  the  right  of  set-off  in  such  a  case  may  well  follow  as  a 
result  of  the  identification  of  principal  and  agent  which  rests 
upon  the  doctrine  of  agency.  On  the  other  hand,  if  the 
agent  is  one  who,  like  a  broker,  is  not  intrusted  with  posses- 
sion, or  the  indicia  of  ownership,  and  has  not  power  to  con- 
tract in  his  own  name,  or  to  receive  payment,  no  right  to  set 
off  against  the  price  a  debt  due  from  the  agent  or  to  deduct 
the  amount  of  a  payment  made  to  the  agent  can  arise.  If 
the  principal  afterwards  delivers  possession  of  the  goods  to 
the  agent,  indeed,  and  he  in  turn  delivers  them  to  the  buyer, 
who  receives  them  without  notice  of  the  agency,  the  buyer 

SB  Cooke  v.  Eshelby,  12  App.  Gas.  271;  Baring  v.  Corrie,  2  B.  & 
Aid.  137;  Montague  v.  Forwood  [1893]  2  Q.  B.  351;  Baxter  v.  Sher- 
man, 73  Minn.  434,  76  N.  W.  211,  72  Am.  St.  Rep.  631. 

Of  course,  if  the  principal  stands  by  and  allows  a  third  person 
innocently  to  treat  with  his  agent  as  principal,  he  cannot  afterwards 
sue  him  in  his  own  name.  Ferrand  v.  Bishoffsheim,  4  C.  B.  (N.  S.) 
710.  See,  also,  Stebbins  v.  Walker,  46  Mich.  5,  18  N.  W.  521. 

««  Ex  parte  Dixon,  4  Ch.  D.  133. 

"Now,  the  rule  of  law  is  that  the  extent  of  an  agent's  authority, 
as  between  timself  and  third  parties,  is  to  be  measured  by  the  ex- 
tent of  his  usual  employment.  That  being  so,  the  very  fact  of  in- 
trusting your  goods  to  a  man  as  factor,  with  a  right  to  sell  them,  is 
prima  facie  authority  to  sell  in  your  name."  Per  Brett,  J.  A. 


§§  70-71)      CONTRACT  FOR  UNDISCLOSED  PRINCIPAL.  313 

would  be  entitled  to  a  set-off,  and  the  principal  would  be 
bound  by  a  payment  to  the  agent,  in  the  same  manner  as 
if  the  agent  had  been  intrusted  with  possession  at  the  time 
of  the  contract  of  sale.*1  But  if  the  seller  delivers  the 
goods  directly  to  the  buyer,  without  intrusting  their  posses- 
sion to  the  agent,  or  in  any  manner  clothing  him  with  au- 
thority to  receive  payment,  and  the  buyer  chooses  to  accept 
the  delivery,  the  seller  would  not  be  bound  by  a  payment 
to  or  settlement  with  the  agent,  whether  made  before  or  after 
the  delivery,88  nor  could  the  buyer  set  off  a  debt  due  from 
the  agent.89  It  does  not  follow,  of  course,  that  in  such  a 
case  the  buyer  would  be  obliged  to  accept  the  goods ,  for  he 
would  clearly  be  entitled  to  refuse  the  substituted  perform- 

«T  Belfield  v.  Supply  Co.,  189  Pa.  189,  42  Atl.  131,  69  Am.  St.  Rep. 
799. 

ss  Crosby  v.  Hill,  39  Ohio  St.  100.  In  that  case  plaintiffs'  broker, 
who  was  not  intrusted  with  possession,  contracted  in  his  own  name 
to  sell  goods  to  defendant,  who  had  no  knowledge  that  the  broker 
was  not  the  real  owner,  but  dealt  with  him  as  such.  The  broker 
notified  plaintiffs  that  he  had  sold  for  them,  and  directed  them  where 
to  ship  to  the  buyer;  and  they,  without  knowledge  that  the  broker 
had  contracted  in  his  own  name,  and  without  any  conduct  clothing 
him  with  authority  to  receive  payment,  or  with  possession,  actual  or 
constructive,  delivered  to  defendant  Held,  that  payment  by  de- 
fendant to  the  broker,  though  before  notice  of  plaintiffs'  rights,  was 
not  a  bar  to  plaintiffs'  right  to  recover.  "Defendant  had  the  means 
of  knowledge  at-  his  command,"  said  the  court,  "and  the  fact  that 
Roth  [the  broker]  had  noc  possession  of  the  property  he  was  selling 
was  sufficient  to  require  of  defendant  that,  before  payment,  he 
should  ascertain  to  whom  payment  was  due."  See,  also,  Bertoli  v. 
Smith,  69  Vt.  425,  38  Atl.  76. 

3»  Bernshouse  v.  Abbott,  45  N.  J.  Law,  531,  46  Am.  Rep.  789.  See. 
also,  Baring  v.  Corrie,  2  B.  &  Aid.  137;  Bliss  v.  Bliss,  7  Bosw.  339. 

A  buyer  who  had  bought  goods  from  one  not  in  possession,  with 
whom  he  dealt  as  owner,  and  who  was  indebted  to  him  on  an  ac- 
count in  part  settlement  of  which  the  goods  were  sold,  could  not. 
when  informed  before  delivery  that  the  goods  were  the  property  of 
an  undisclosed  principal,  set  off  the  amount  due  from  the  agent  in 
an  action  by  the  principal  for  the  value  of  the  goods.  McLachlin 
T.  Brett,  105  N.  Y.  391,  12  N.  E.  17. 


314  LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL          (Ch.  12 

ance  if  he  would  thereby  be  deprived  of  his  set-off  or  defense 
of  payment.40  In  other  words,  although  if  the  buyer  elected 
to  accept  the  goods  the  principal  could  maintain  an  action 
for  goods  sold  and  delivered  without  deduction  by  reason 
of  such  set-off  or  payment,  his  right  to  perform  and  maintain 
an  action  for  nonacceptance  would  be  subject  to  such  de- 
fense. 

QUASI  CONTRACT. 

72.  Where  money  in  paid  by  an  agent  to  a  third  person  under 
a  mistake  of  fact,  or  nnder  such  other  circumstances 
that  in  equity  and  good  conscience  he  ought  not  to 
retain  it,  the  principal  may  recover  it  in  an  action  for 
money  had  and  received. 

As  a  rule,  where  money  is  paid  by  the  agent  to  a  third 
person  under  such  circumstances  that  it  would  be  uncon- 
scionable for  him  to  retain  it,  the  principal  may  recover  it  in 
an  action  for  money  had  and  received.1  The  action  is  not 
based  upon  contract,  but  upon  the  ground  that  the  money 
equitably  belongs  to  the  plaintiff,  and  the  obligation  is  quasi 

40  Belfield  v.  Supply  Co.,  189  Pa.  189,  42  Atl.  131,  69  Am.  St  Rep. 
799. 

"When  the  lumber  came,  and  the  vendee  saw  that  the  vendor,  on 
a  contract  made  with  him  as  owner,  was  seeking  to  perform  as  agent, 
and  instead  of  fulfilling  his  own  obligation  was  substituting  per- 
formance by  another,  such  vendee  could  refuse  the  substituted  per- 
formance in  any  case  where  his  rights  or  interest  would  be  injuri- 
ously affected  by  the  change.  *  *  *  The  vendees  undoubtedly 
had  a  right  to  refuse  to  come  under  obligations  to  the  new  creditor. 
*  *  *  But  being  at  liberty  to  refuse,  and  to  demand  performance 
by  Hall  &  Co.  [the  vendors],  under  the  existing  circumstances  and 
relations,  in  strict  accordance  with  their  contract,  they  were  also  at 
liberty  to  accept  the  lumber,  with  the  necessary  consequence  that 
the  whole  purchase  price  should  become  due  to  the  real  and  dis- 
closed owner,  and  none  of  it  to  Hall  &  Co.,  except  as  agents  for 
that  owner."  Per  Finch,  J.,  in  McLachlin  v.  Brett,  105  N.  Y.  391, 
12  N.  E.  17.  See,  also,  Boulton  v.  Jones,  2  H.  &  N.  564,  per  Bram- 
well,  B. 

§  72.     i  Clarke  v.  Shee,  Cowp.  197. 


§§  73-76)  TORTS.  315 

contractual.  Upon  this  principle,  money  may  be  recovered 
when  the  agent  has  paid  it  under  a  mistake  of  fact,2  or  it  has 
been  illegally  exacted  from  him,8  or,  where  gaming  is  unlaw- 
ful, when  he  has  gambled  it  away  or  paid  it  upon  a  wager.* 

TORTS— PROPERTY  WRONGFULLY  DISPOSED  OF. 

73.  Subject  to  the  exceptions  stated  in  sections  74-76,  when 

an  agent  disposes  of  the  property  of  his  principal  to  a 
third  person,  and  in  so  doing  acts  beyond  the  scope  of 
the  authority  which  as  against  such  person  he  is 
deemed  to  have,  the  principal  may  maintain  an  action 
against  such  person  for  the  recovery  of  the  property 
or  for  conversion. 

74.  MONET  AND  SECURITIES.     When  an  agent  pays  money 

or  negotiates  a  negotiable  instrument  which  is  trans- 
ferable by  delivery  to  a  bona  fide  purchaser  for  value, 
the  purchaser  acquires  a  good  title,  notwithstanding 
the  agent's  want  of  authority. 

75.  ESTOPPEL.       When    the    owner    of    property    has    repre- 

sented or  permitted  it  to  be  represented  that  another 
person  is  owner,  or  is  authorized  to  dispose  of  it,  the 
owner  is  estopped,  as  against  a  bona  fide  purchaser  for 
value,  to  deny  such  ownership  or  authority. 

76.  FACTORS'    ACTS.      By    statute    in    some    jurisdictions    a 

purchaser  or  pledgee  from  a  factor  or  other  agent  in- 
trusted with  the  possession  of  goods  or  the  documents 
of  title  may,  under  certain  circumstances,  acquire  good 
title,  although  the  agent  •was  not  authorized  so  to  dis- 
pose of  the  goods. 

In  General. 

Since  the  possession  of  the  agent  is  the  possession  of 
the  principal,  the  latter  may,  of  course,  maintain  an  action 
for  any  act  of  trespass  committed  by  a  third  person  upon 

*  United  States  v.  Bartlett,  2  Ware  (U.  S.)  17,  Fed.  Cas.  No.  14,532. 

»  Stevenson  v.  Mortimer,  Cowp.  805.  See  Demarest  v.  Barbadoes 
Tp.,  40  N.  J.  Law,  004. 

«  Mason  v.  Waite,  17  Mass.  560;  Burnham  v.  Fisher,  25  Vt.  514; 
Thompson  v.  Hynds,  15  Vt  389,  49  Pac.  293. 


316  LIABILITY  OP  THIRD  PERSON  TO  PRINCIPAL.          (Ch.  12 

his  property  in  the  agent's  hands,1  and,  if  the  property  is 
wrongfully  converted,  may  maintain  an  action  for  its  re- 
covery2 or  for  conversion.8 

As  a  rule,  no  person  can  transfer  to  another  a  better  title 
than  he  himself  possesses.  A  person,  therefore,  however 
innocent,  who  buys  a  thing  from  one  not  the  owner,  or  re- 
ceives it  in  deposit  by  way  of  security,  obtains,  in  general, 
no  property  in  it  whatsoever.  It  makes  no  difference  that 
the  person  who  assumes  to  sell  or  otherwise  dispose  of  the 
thing  is  an  agent,  unless  he  has  authority,  real  or  apparent, 
to  do  so.  If  the  disposition  of  the  thing,  whether  by  way 
of  sale,4  pledge,5  barter,6  or  otherwise,  is  not  one  which,  as 
against  the  other  party,  the  agent  is  to  be  deemed  authorized 
to  make,  the  owner  may  maintain  an  action  for  recovery 
of  possession  or  for  conversion.  To  the  general  rule,  that 
no  person  can  transfer  a  better  title  than  he  possesses,  how- 
ever, there  are  some  exceptions,  several  of  which  are  here 
in  point. 

Money  and  Negotiable  Instruments. 

When  any  person  in  the  possession  of  money,  although 
he  may  have  stolen  it,  pays  it  for  value  to  a  person  who  has 
no  notice  of  any  defect  in  his  title,  the  latter  acquires  a  per- 
fect title  to  it.  And  by  the  law  merchant  bills  of  exchange, 
promissory  notes,  and  other  negotiable  securities,  if  payable 
to  bearer  or  indorsed  in  blank,  and  hence  transferable  by 

§§  73-76.  »  Holly  v.  Huggeford,  8  Pick.  (Mass.)  73,  19  Am.  Dec. 
303. 

a  White  r.  Dolliver,  113  Mass.  400,  18  Am.  Rep.  502. 

»  Waldo  v.  Peck,  7  Vt.  434. 

4  Biggs  v.  Evans  [1894]  1  Q.  B.  88;  Levi  v.  Booth,  58  Md.  308, 
42  Am.  Rep.  332;  Manning  v.  Keenan,  73  N.  Y.  45;  Thompson  v. 
Barnum,  49  Iowa,  392;  Oilman  Linseed  Oil  Co.  v.  Norton,  89  Iowa, 
434,  56  N.  W.  663,  48  Am.  St.  Rep.  400. 

B  Fletcher  v.  Heath,  7  B.  &  C.  517;  Boyes  v.  Coles,  6  M.  &  S.  14; 
Thurber  v.  Bank  (C.  C.)  52  Fed.  513. 

•-  ^uerreiro  T.  Peile,  3  3.  &  A.  616;  Taylor  &  Farley  Organ  Go. 
v.  Starkey,  59  N.  H.  142. 


§§  73-76)  TORTS.  317 

delivery,  stand  upon  the  same  footing,  provided  they  are  ne- 
gotiated to  a  purchaser  for  value  before  maturity.7  Conse- 
quently, when  an  agent  without  authority  pays  money  or 
negotiates  such  securities  belonging  to  his  principal  to  one 
who  has  no  notice  of  the  agency,  the  other  conditions  being 
fulfilled,  the  principal  is  without  remedy  against  him.' 

Priiicipal  Estopped. 

As  has  been  explained,  authority  to  sell  is  not  to  be  in- 
ferred from  possession;  but  the  owner  may  be  estopped  as 
against  a  purchaser  to  deny  the  ownership  of  one  whom  he 
has  intrusted  with  possession,  if  he  has  invested  him  with 
the  indicia,  or  other  documentary  evidence,  of  title,9  and  may 
be  estopped,  if  the  other  elements  of  estoppel  exist,  to  deny 
that  a  person  intrusted  with  possession  was  his  agent  and 
authorized  to  sell.1* 

Factors'  Acts. 

At  common  law,  when  the  principal  intrusts  goods  to  a 
factor  for  sale,  the  factor  may  sell  in  his  own  name,  and 
unless  the  buyer  has  notice  of  some  limitation  upon  the  au- 
thority, the  agent  has,  as  against  him,  the  customary  powers 
of  a  factor,  such  as  fixing  the  price  and  selling  on  credit. 
On  the  other  hand,  although  the  goods  are  intrusted  to  the 
possession  of  a  factor,  unless  they  are  intrusted  for  sale  the 
factor  has  no  power  to  sell  them,  and  one  who  buys  in  reli- 
ance upon  his  apparent  ownership  is  not  protected.11  More- 
over, at  common  law,  a  factor  intrusted  with  possession  of 
the  goods  and  authorized  to  sell  has  no  power  to  pledge.12 
To  afford  protection  to  persons  dealing  with  factors  and 
other  agents  intrusted  with  the  possession  of  goods  or  of 

T  Norton,  B.  &  N.  (3d  Ed.)  110,  204.  . 

«  Goodwin  v.  Robarts,  1  App.  Cas.  476;  Rumbull  v.  Metropolitan 
Bank,  2  Q.  B.  D.  194;  London  Joint  S.  Bank  v.  Simmons  [1892]  A. 
C.  201. 

•  Ante,  p.  204.  n  Ante,  p.  204. 

10  Ante,  pp.  34.  183.  x»  Ante,  p.  223. 


318  LIABILITY  OF  THIRD   PERSON  TO  PRINCIPAL.  (Ch.  12 

the   documentary   evidence   of  title,   so-called  factors'   acts 
have  been  enacted  in  many  jurisdictions. 

English  Factors'  Acts. 

The  early  English  factors'  act  of  1825  (6  Geo.  IV,  c.  94)" 
has  been  to  a  great  extent  the  model  of  the  various  enact- 
ments on  the  same  subject  in  the  United  States.  The  second 
section  provided  that  any  person  "intrusted  with  and  in  pos- 
session of  any  bill  of  lading,  India  warrant,  dock  warrant, 
warehouse  keeper's  certificate,  wharfinger's  certificate,  war- 
rant or  order  for  the  delivery  of  goods,  shall  be  deemed  and 
taken  to  be  the  true  owner  *  *  *  of  the  goods  *  *  * 
mentioned  in  said  several  documents  *  *  *  so  far  as  to 
give  validity  to  any  contract"  made  by  him  with  any  other 
person  for  the  sale  or  disposition  of  the  goods,  or  for  the 
deposit  or  pledge  thereof  as  security  for  advances  made  upon 
the  faith  of  such  several  documents,  or  either  of  them; 
provided  such  persons  had  not  notice  that  the  person  so  in- 
trusted was  not  the  actual  and  bona  fide  owner  of  the  goods. 
This  made  an  important  alteration  in  the  law  by  giving  to 
the  possessor  of  bills  of  lading  or  other  documents  of  title 
power  of  selling  or  pledging  the  goods  beyond  any  which 
either  by  the  common  law  or  by  any  other  section  of  the 
act  the  possession  of  the  goods  themselves  conferred.1*  It 
is  to  be  observed  that  it  was  only  persons  who  dealt  with 
the  person  in  possession  upon  the  faith  of  the  documents,  in 
the  belief  that  he  was  owner,  who  were  protected.16  The 
fourth  section  provided  that  purchasers  from  any  agent  "in- 
trusted with  any  goods,  wares,  and  merchandise,"  or  to  whom 
the  same  might  be  consigned,  should  be  protected  in  their 
purchases  notwithstanding  notice  that  the  seller  was  agent, 
provided  that  the  purchase  and  payment  were  made  in  the 
usual  course  of  business,  and  the  buyer  had  not  notice  of 

is  An  earlier  act  was  passed  in  1823  (6  Geo.  IV,  c.  83). 
i*  Evans,  Ag.  416. 

"Phillips  v.  Huth,  6  M.  &  W.  572;  Hatfield  v.  Phillips,  9  M. 
&  W.  647. 


§§  73-76)  TORTS.  319 

the  absence  of  authority  of  the  agent.  By  5  &  6  Viet.  c. 
39  (1842),  the  act  was  so  amended  as  to  give  the  same  effect 
to  the  possession  of  the  goods  as  to  that  of  the  documents 
of  title,  and  it  was  provided  that  any  agent  intrusted  with 
the  possession  of  either  was  to  be  deemed  the  true  owner 
so  as  to  give  validity  to  any  bona  fide  contract  by  way  of 
pledge,  with  the  important  change  that  such  contract  should 
be  binding  upon  the  owner  notwithstanding  that  the  pledgee 
had  notice  that  the  person  with  whom  the  agreement  was 
made  was  only  an  agent.  These  acts  applied  solely  to  per- 
sons intrusted  as  factors  or  commission  merchants,  and  not 
to  persons  to  whose  employment  authority  to  sell  is  not 
ordinarily  incident ;  for  example,  a  wharfinger.1"  They  were 
limited  in  their  scope  to  mercantile  transactions,  and  did  not 
embrace  sales  of  furniture  or  of  goods  in  possession  of  a 
tenant  or  bailee  for  hire.17 

It  might  be  supposed  that  the  effect  of  these  enactments 
would  be  such  that,  if  the  owner  of  goods  intrusted  their 
possession  or  the  documents  of  title  to  a  person  who  from 
the  nature  of  his  employment  might  be  taken  prima  facie 
to  have  the  right  to  sell,  a  pledge  by  such  a  person  to  one 
who  was  without  notice  of  the  absence  of  authority  would 
bind  the  true  owner.  Nevertheless,  under  5  &  6  Viet.  c.  39, 
it  was  held  that  the  agent  must  be  actually  intrusted  at  the 
time  of  the  pledge,  and  that  if  the  authority  had  been  with- 
drawn, although  the  pledgee  was  ignorant  thereof  and  acted 
in  good  faith,  and  the  agent  remained  in  possession,  the 
pledgee  was  not  protected.18  To  constitute  a  person  "an 
agent  intrusted  with  the  possession,"  he  must  have  been  in- 
trusted in  the  character  of  such  agent ;  that  is,  for  the  pur- 

»•  Monk  v.  Wbirtenbnry,  2  B.  &  Ad.  484;  Wood  v.  Rowcliffe, 
6  Hare,  183;  Lamb  v.  Attenborough,  1  B.  &  S.  831;  Jaullery  v. 
Britten,  4  Bing.  N.  C.  242;  Hellings  v.  Russell,  33  L.  T.  (N.  S.)  380. 

"  Loeschman  v.  Macbin,  2  Stark.  311;  Cooper  v.  Willomatt,  1 
0.  B.  672. 

i«  Fuentes  v.  Montis,  L.  R.  4  C.  P.  93.  See,  also,  Sheppard  r. 
Union  Bank.  7  H.  &  N.  661. 


320  LIABILITY  OP  THIRD  PERSON  TO   PRINCIPAL.  (Ch.  12 

pose  of  sale.19  The  acts  did  not  cover  the  case  of  a  seller 
left  in  possession,20  or  of  a  buyer  left  in  possession,  so  as 
to  defeat  the  rights  of  an  unpaid  seller.21  The  effect  of 
these  decisions  was  partly  annulled  in  1877  by  40  &  41  Viet. 
c.  39,  which  provided  that  a  secret  revocation  of  agency 
should  not  be  operative,  and  which  extended  the  scope  of 
the  .acts  to  buyers  and  sellers  left  in  possession,  and  in  some 
other  respects.  In  1889  was  passed  an  act  to  amend  and  con- 
solidate the  factors'  acts  (52  &  53  Viet.  c.  45),  which  em- 
bodies the  changes  made  by  the  act  of  1877." 

American  Factors*   Acts. 

Factors'  acts  have  been  passed  in  many  states.*8  Owing  to 
their  varying  provisions,  only  that  of  New  York,  which  has 
been  followed  in  some  other  states,  will  be  considered. 
This  act,  which  will  be  found  in  the  Appendix,  was  passed 
in  1830,  and  was,  with  some  modifications,  based  on  6  Geo. 
IV,  c.  94-24  It  provides  in  section  3  that  "every  factor  or 
other  agent,  intrusted  with  the  possession  of  any  bill  of  lad- 
ing, custom-house  permit,  or  warehouse  keeper's  receipt  for 

is  Cole  v.  Northwestern  Bank,  L.  R.  9  C.  P.  470,  affirmed  L.  R. 
10  0.  P.  354;  Johnson  v.  Credit  Lyonnais  Co.,  2  a  P.  D.  224, 
affirmed  3  C.  P.  D.  32;  Biggs  v.  Evans  [1894]  1  Q.  B.  88. 

20  Johnson  v.  Credit  Lyonnais  Co.,  2  C.  P.  D.  224. 

21  Jenkyns  v.  Usborne,  7  M.  &  G.  678;    McEwan  v.  Smith,  2  H. 
L.  Cas.  309. 

22  Appendix,  p.  479. 

23  Kentucky,  Laws  1880,  May  5,  p.  200,  c.  1541;    Maine,  Rev.  St. 
c.  31;   Maryland,  Pub.  Gen.  Laws  1888,  art.  2;    Massachusetts,  Rev. 
Laws  1902,  c.  68  (construing  the  Massachusetts  act,   Nickerson  v. 
Darrow,  5  Allen  [Mass.]  419;  Stollenwerck  v.  Thacher,  115  Mass.  224; 
Thacher  v.  Moors,  134  Mass.  156;  Prentice  Co.  v.  Page,  164  Mass.  276, 
41  N.  E.  279;    Cairns  v.  Page,  165  Mass.  552,  43  N.  E.  503);    New 
York,  Rev.  St.  (9th  Ed.)  p.  2006;    Ohio,  Rev.  St.  1890,  §§  3214-3220; 
Pennsylvania,  Pepper  &  Lewis'  Dig.  pp.  2027-2029;    Rhode  Island, 
Gen.  Laws  1896,  c.  158;   Wisconsin,  Rev.  St.  1898,  §§  3345,  3346. 

24  See  Stevens  v.  Wilson,  6  Hill  (N.  Y.)  512;    Id.,  3  Denio  (N.  Y.) 
472;  Allen  v.  Bank,  120  U.  S.  20,  7  Sup.  Ct.  460,  30  L.  Ed.  573. 


§§  73-76)  TORTS.  321 

the  delivery  of  any  such "  merchandise,  and  every  such 
factor  or  agent,  not  having  the  documentary  evidence  of 
title,  who  shall  be  intrusted  with  the  possession  of  any  mer- 
chandise for  the  purpose  of  sale,  or  as  a  security  for  any  ad- 
vances to  be  made  or  obtained  thereon,  shall  be  deemed 
to  be  the  true  owner  thereof,  so  far  as  to  give  validity  to  any 
contract  made  by  such  agent,  with  any  other  person,  for  the 
sale  or  disposition  of  the  whole  or  any  part  of  such  mer- 
chandise, for  any  money  advanced,  or  negotiable  instrument 
or  other  obligation  in  writing,  given  by  such  other  person 
upon  the  faith  thereof."  The  words  "upon  the  faith  thereof" 
are  to  be  referred  to  the  words  "shall  be  deemed  to  be  the 
true  owner  thereof";  in  other  words,  the  statute  does  not 
afford  protection  to  one  who  knows  that  he  is  not  dealing 
with  the  true  owner.26  "The  object  of  the  statute  was  to 
protect  innocent  persons  who  deal  in  reliance  upon  apparent 
ownership,  resting  upon  possession  either  of  the  merchandise 
itself  or  documentary  evidence  of  ownership."  2T  The  act 
thus  differs  materially  from  the  later  English  acts,  in  which 
the  protection  extends  to  those  dealing  with  the  agent,  not- 
withstanding knowledge  that  he  is  such,  provided  they  are 
without  notice  that  he  is  exceeding  his  authority.28 

The  protection  of  the  act  is  extended  to  persons  dealing 
with  (i)  a  factor  or  other  agent  intrusted  with  the  bill  of 

25  Referring  to  section  1:  "Every  person  in  whose  name  any  mer- 
chandise shall  be  shipped,"  i.  e.,  any  merchandise  shipped  in  the 
name  of  the  factor  or  agent  Cartwright  v.  Wilmerding,  24  N.  Y. 
621,  527;  Zachrisson  v.  Ahman,  2  Sandf.  68;  Bonito  v.  Mosquera, 
2  Bosw.  (N.  Y.)  401;  First  Nat.  Bank  v.  Shaw,  61  N.  Y.  283. 

se  Stevens  v.  Wilson,  6  Hill  (N.  Y.)  512;  Covell  v.  Hill,  6  N.  Y. 
374:  Rowland  v.  Woodruff,  60  N.  Y.  73. 

This  construction  was  disapproved  under  a  similar  act  in  Wis- 
consin. Price  v.  Insurance  Co.,  43  Wis.  267.  Of.  Allen  v.  Bank, 
120  U.  S.  20,  7  Sup.  Ot.  460,  30  L.  Ed.  573. 

27  Per  Vann,  J.,  in  New  York  Security  &  Trust  Co.  v.  Lipman.  157 
N.  Y.  551.  52  N.   E.  595. 

28  Navulshaw  v.  Brownrigg,  1  Sim.  N.  S.  573;   Vicars  Y.  Hertz, 
£  R.  2  H.  L.  Sc.  113.     See  Factors'  Act  1889,  §  2. 

TIFF.P.&  A.— 21 


322  LIABILITY  OP  THIRD   PERSON   TO  PRINCIPAL.  (Ch.  12 

lading  or  other  document,  or  (2)  a  factor  or  other  agent  who 
is  intrusted  with  the  possession  of  the  merchandise  "for  the 
purpose  of  sale  or  as  security  for  any  advances  to  be  made 
or  obtained  thereon."  Under  the  first  branch  the  agent 
must  have  the  documentary  evidence  of  title  in  his  name.29 
This  must  be  a  bill  of  lading,  custom  house  permit,  or  ware- 
house keeper's  receipt ; 80  the  act  thus  differing  from  the 
later  English  acts,  which  have  included  any  document  used 
in  the  ordinary  course  of  business  as  proof  of  the  possession 
or  control  of  goods,  or  authorizing  or  purporting  to  authorize 
the  possessor  to  transfer  or  receive  goods  thereby  repre- 
sented.81 ,  Under  the  second  branch  the  intrusting  must  be 
for  the  purpose  of  sale  or  obtaining  advances,82  here  again 
differing  from  the  present  English  act.88  The  possession 

*  e  First  Nat.  Bank  v.  Shaw,  61  N.  Y.  283.  It  seems  that  the 
document  must  be  intrusted  "for  the  purpose  of  sale,"  etc.  Oart- 
wright  v.  Wilmerding,  24  N.  Y.  521,  528.  Cf.  Price  v.  Insurance  Co.. 
43  Wis.  267. 

sosoltau  v.  Gerdau,  119  N.  Y.  380,  23  N.  E.  864,  16  Am.  St. 
Rep.  843.  Of.  Cartwright  v.  Wilmerding,  24  N.  Y.  521. 

si  Vickers  v.  Hertz,  L.  R.  2  H.  L.  Sc.  113.  See  Factors'  Act 
1889,  §  1. 

82  Moors  v.  Kidder,  106  N.  Y.  32,  12  N.  E,  818. 

ss  See  Factors'  Act  1889,  §  2.  By  section  1  it  is  provided  that 
"mercantile  agent"  shall  mean  a  mercantile  agent  having  in  the 
customary  course  of  his  business  as  such  agent  authority  either  to 
sell  goods,  or  to  consign  goods  for  the  purpose  of  sale,  or  to  buy 
goods,  or  to  raise  money  on  the  security  of  goods.  By  section  2 
It  is  provided  that,  when  a  mercantile  agent  is  with  the  consent  of 
the  owner  in  possession,  any  disposition  made  by  him  when  acting 
within  the  ordinary  course  of  business  of  a  mercantile  agent  shall, 
subject  to  the  provisions  of  the  act,  be  valid,  etc.  An  agent  em- 
ployed to  hawk  about  and  sell  goods  on  commission  is  not  a  "mer- 
cantile agent."  Hastings  v.  Pearson  11892]  1  Q.  B.  62. 

But  one  employed  on  a  salary  to  go  about  and  sell  goods  put 
Into  his  manual  possession  is  a  person  "intrusted  with  merchandise 
and  having  authority  to  sell  or  consign  the  same,"  within  Mass. 
Pub.  St.  c.  71,  §  3,  protecting  one  who  receives  merchandise  from 
cuch  oerson.  and  advances  money  thereon  in  good  faith,  believing 
mm  to  oe  tne  owner;  tne  statute  not  oemg  connnea  to  mercantile 
agents.  Cairns  v.  Page,  165  Mass.  552,  43  N.  E.  503. 


§  77)  TORTS.  323 

must  be  actual,  and  not  merely  constructive.84  In  either 
case,  the  possession  must  be  "intrusted."  The  agent  must 
be  consciously  and  voluntarily  intrusted,  and  the  act  has  no 
application  to  a  case  where  the  documents  or  the  goods  are 
taken  by  trespass  or  theft,  and  thus  the  possession  is  from 
the  beginning  wrongful.85  When  the  merchandise  is  taken 
in  deposit  as  security  for  an  antecedent  debt,  no  greater  right 
is  acquired  than  was  possessed  and  might  have  been  enforced 
by  the  agent."  The  owner  may  demand  and  receive  any 
merchandise  so  deposited  on  repayment  of  the  money  ad- 
vanced, and  may  recover  any  balance  in  the  hands  of  the 
person  with  whom  the  merchandise  was  deposited  as  the 
produce  of  its  sale,  after  satisfying  the  amount  due  him  by 
reason  of  the  deposit." 


SAME— FOLLOWING   TRUST  FUNDS. 

77.  When  an  agent  misapplies  money  intrusted  to  him,  or 
wrongfnlly  converts  the  property  of  his  principal  into 
some  other  form,  the  principal  is  entitled,  as  against 
the  agent  or  any  person  claiming  nnder  him  except  a 
bor.a  fide  purchaser,  to  the  proceeds  of  snch  money  or 
property,  provided  that  they  can  be  identified  as  snch; 
and,  if  the  agent  has  mixed  the  money  or  property 
with  his  own,  the  principal  is  entitled,  as  against  the 
agent  or  snch  other  person,  to  a  charge  npon  the  mixed 
fnnd  or  mass,  or  npon  the  proceeds  of  the  same,  pro- 
vided the  original  money  or  property,  or  the  proceeds 
thereof,  can  be  identified  as  entering  into  the  fnnd 
or  property  sought  to  be  charged* 

»*  Boninto  Y.  Mosquera,  2  Bosw.  (N.  Y.)  401;  Howland  v.  Wood- 
ruff, 60  N.  Y.  73. 

ss  Kinsey  v.  Leggett,  71  N.  Y.  387;  Soltau  v.  Gerdau,  119  N.  Y. 
380,  23  N.  E.  8G4,  16  Am.  St.  Rep.  843;  Sage  v.  Lumber  Co.,  4  App. 
Div.  290,  39  N.  Y.  Supp.  449,  affirmed  158  N.  Y.  672,  52  N.  BL  1126. 
See,  also,  First  Nat.  Bank  v.  Shaw,  61  N.  Y.  283;  Collins  v.  Ralli, 
20  Hun,  246,  affirmed  85  N.  Y.  637. 

««  Section  4.  Cf.  52  &  53  Viet  c.  45,  §  4. 

•7  Section  5.  Cf.  52  &  53  Viet.  c.  45,  §§  5,  12. 


324  LIABILITY  OP  THIRD  PERSON  TO  PRINCIPAL.          (Ch.  12 

When  an  agent  misapplies  the  property  of  his  principal, 
the  latter  may  recover  it,  in  whosesoever  hands  it  may  be, 
provided  he  can  identify  it,  unless  the  circumstances  create 
an  estoppel,  or  unless  the  property  be  money  or  a  negotiable 
instrument  transferable  by  delivery,  which  has  come  into  the 
hands  of  a  bona  fide  purchaser.  The  principal  is  not  con- 
fined, however,  to  a  recovery  of  the  specific  thing  in  which 
he  has  property.  If  the  agent  wrongfully  converts  the  thing, 
whether  it  be  money  or  other  property,  into  some  other  form, 
as  by  procuring  something  in  place  of  it  by  sale,  purchase, 
or  exchange,  the  principal's  right  attaches  in  equity  to  the 
proceeds  in  the  hands  of  the  agent,  no  matter  how  many 
transmutations  of  form  the  property  may  pass  through,1  and 
the  principal  may  reclaim  the  proceeds  from  the  agent  or 
may  follow  and  reclaim  them,  into  whosesoever  hands  they 
may  come,  so  long  as  the  original  thing  in  its  substituted 
form  can  be  identified,  until  his  right  of  recovery  is  cut  off 
by  the  intervention  of  a  bona  fide  purchaser.2  The  basis 
of  the  doctrine  is  the  right  of  property.  It  proceeds  upon 
the  theory  that  in  equity  the  product  or  avails  of  that  which 
is  the  principal's  property  belong  to  him  and  have  imputed 
to  them  the  nature  of  the  original  property.  Whether  the 
product  or  avails  are  in  the  hands  of  the  agent  or  have  come 
into  the  hands  of  a  third  person  who  is  not  a  bona  fide  pur- 
chaser, equity  converts  the  person  in  whose  hands  they  are 
into  a  trustee.8 

It  follows  that  the  agent's  trustee  in  bankruptcy  in  such 
a  case  has  no  right,  as  against  the  principal,  to  any  such 

§  77.  *  Taylor  v.  Plumer,  3  M.  &  S.  562;  Ex  parte  Cooke,  re 
Strachan,  4  Ch.  D.  123;  Third  Nat  Bank  v.  Gas  Co.,  36  Minn.  75, 
30  N.  W.  440. 

2  Re  Hallett's  Estate,  13  Ch.  D.  696;  Central  Nat.  Bank  v.  In- 
Burance  Co.,  104  U.  S.  54,  26  L.  Ed.  693;  Importers'  &  Traders'  Nat. 
Bank  v.  Peters,  123  N.  Y.  272,  25  N.  E.  319;  Roca  v.  Byrne,  145 
N.  Y.  182,  39  N.  E.  812,  45  Am.  St.  Rep.  599. 

«  Twohy  Mercantile  Co.  v.  Melbye,  78  Minn.  357,  81  N.  W.  20; 
Eaton,  Eq.  411,  436. 


§  77)  TORTS.  325 

property  in  the  agent's  hands ;  *  that  the  rights  of  an  attach- 
ing creditor  are  inferior  to  those  of  the  principal ;  •  that  the 
principal  may  reclaim  such  property  from  a  mere  volunteer  or 
from  a  purchaser  with  notice ; e  and  that,  when  funds  to 
which  the  principal's  equitable  right  has  attached  have  been 
deposited  by  him  in  the  bank,  the  bank  can  assert  no  lien 
or  claim  thereon,  even  with  the  agent's  consent,  if  it  had 
notice  of  the  principal's  beneficial  ownership.' 

The  chief  difficulty  which  arises  in  such  cases  is  in  estab- 
lishing the  identity  of  some  particular  fund  with  the  prop- 
erty or  fund  which  was  originally  subject  to  the  trust,  par- 
ticularly when  it  has  been  mixed  with  other  moneys  of  the 
trustee.  Formerly  it  was  held  that  if  the  fund  had  become 
confused  with  other  moneys,  so  as  to  be  indistinguishable 
therefrom,  the  equity  was  lost.8  It  is  established,  however, 
that  confusion  does  not  do  away  with  the  equity  entirely, 
but  converts  it  into  a  charge  upon  the  entire  fund,  which  is 
superior  to  the  claims  of  the  general  creditors  of  the  trus- 
tee.9 This  doctrine  has  even  been  so  far  extended  by  some 
courts  as  to  hold  that  it  is  enough  if  the  particular  property 
or  fund  can  be  traced  into  the  estate  of  the  trustee  so  as  to 
augment  it,  without  tracing  the  trust  fund  into  any  specific 
fund  or  property,  and  that  in  such  case  the  beneficiary  is 
entitled  to  a  charge  or  lien  upon  the  general  assets  of  the 

*  Taylor  v.  Plumer,  3  M.  &  S.  562;   Ex  parte  Oooke,  4  Ch.  D.  123; 
Chesterfield  Mfg.  Co.  v.  Dehon,  5  Pick.  (Mass.)  7,  16  Am.  Dec.  367. 

5  Merrill  T.  Bank,  19  Pick.  (Mass.)  32;  Farmers'  &  Mechanics' 
Nat.  Bank  v.  King,  57  Pa.  202,  98  Am.  Dec.  215. 

«  Riehl  v.  Association,  104  Ind.  70,  3  N.  E.  636. 

1  Central  Nat.  Bank  v.  Insurance  Co.,  104  U.  S.  54,  26  L.  Ed. 
693;  Union  Stock  Yards  Nat.  Bank  v.  Gillespie,  137  U.  S.  411,  11 
Sup.  Ct.  118.  34  T,.  Ed.  724;  Baker  v.  Bank,  100  N.  Y.  31,  2  N.  E. 
452,  53  Am.  Rep.  150. 

s  Taylor  v.  Plumer,  3  M.  &  S.  562. 

•  Broadbent  v.  Barlow,  3  De  Gex,  F.  &  J.  570;  Frith  v.  Cartland,  34 
L.  J.  Ch.  301;   Re  Hallett's  Estate,  13  Ch.  D.  696;   Central  Nat.  Bank 
v.   Insurance  Co.,   104  U.   S.  54,  26  L.  Ed.   693;    Frelinghuysen  v. 
Nugent  (C.  C.)  36  Fed.  229,  239;   Van  Alen  v.  Bank,  52  N.  Y.  1. 


326  LIABILITY  OF  THIRD   PERSON  TO  PRINCIPAL.  (Ch.  12 

estate  superior  to  the  rights  of  the  general  creditors ; 10  but 
this  now  finds  little  support.  If  the  principal  is  unable  to 
trace  the  trust  property  into  any  specific  property  or  fund, 
or  at  least  to  make  it  appear  that  the  proceeds  are  in  fact  in- 
cluded in  the  estate  remaining  for  distribution,  the  trust 
creditor  is  not  entitled  to  preference.11 

FRAUD  AND  DECEIT. 

78.  When  a  third  person,  in  dealing  with  an  agent,  is  guilty 

of  fraud  to  the  injury  of  the  principal,  he  is  liable  to 
the  principal  for  the  loss  thereby  incurred. 

SAME— COLLUSION  WITH  AGENT. 

79.  When  a  third  person  colludes  with  the  agent  in  defraud- 

ing the  principal,  they  are  jointly  and  severally  liable 
to  the  principal  for  the  loss  thereby  incurred. 

Deceit  and  Fraud. 

A  third  person  who  is  guilty  of  fraud  to  the  injury  of  the 
principal  is,  of  course,  liable  to  him  no  less  than  if  he  had 
acted  in  person.  Thus,  if  a  third  person,  in  contracting  with 
the  agent,  makes  a  false  representation,  which  would  entitle 
the  principal,  had  he  dealt  in  person,  to  maintain  an  action 

10  McLeod  v.  Evans,  66  Wis.  409,  28  N.  W.  173,  214,  57  Am.  Rep. 
287   (overruled  Nonotuck  Silk  Co.  v.  Flanders,   87  Wis.  237,  58  N. 
W.  383);    Peak  v.  Ellicott,  30  Kan.  156,  1  Pac.  499,  46  Am.  Rep. 
90;   Pundmann  v.  Schoenich,  144  Mo.  149,  45  S.  W.  1112.     See,  also, 
Davenport  Plow  Co.  v.  Lamp,  80  Iowa,  722,  45  N.  W.  1049,  20  Am. 
St.  Rep.  442. 

11  Peters  v.  Bain,  133  U.  S.  670,  10  Sup.  Ct.  354,  33  L.  Ed.  696; 
Philadelphia  Nat.  Bank  v.  Dowd  (0.  C.)  38  Fed.  172,  2  L.  R.  A.  480; 
Metropolitan   Nat.    Bank   v.    Commission   Co.    (C.    C.)   77   Fed.   705; 
Little  v.  Chadwick,  151  Mass.  109,  23  N.  E.  1005,  7  L.  R.  A.  570; 
Cavin  v.  Gleason,  105  N.  Y.  256,  11  N.  E.  504;    Nonotuck  Silk  Co. 
v.  Flanders,  87  Wis.  237,  58  N.  W.  383  (overruling  McLeod  v.  Evans, 
66  Wis.  409,  28  N.  W.  173,  214,  57  Am.  Rep.  287);    Continental  Nat. 
Bank  v.   Weems,   69  Tex.  489,   6  S.   W.   802,   5  Am.   St.   Rep.   85; 
Twohy  Mercantile  Co.  v.  Melbye,  78  Minn.  357,  81  N.  W.  20.     Of. 
Bishop  v.  Mahoney,  70  Minn.  238,  73  N.  W.  6. 


§§  78-79)  FRAUD   AND   DECEIT.  327 

for  deceit,  he  may  maintain  such  action.1  So,  if  a  public 
officer  knowingly  makes  a  false  record,  and  a  person  is  in- 
jured in  a  transaction  by  reason  of  the  fact  that  his  agent 
charged  with  the  business  is  deceived  by  the  record,  the  law 
will  treat  the  principal  as  deceived,  and  hold  the  officer  re- 
sponsible to  him.2 

Collusion  with  Agent. 

It  has  already  been  explained  that  a  contract  made  by  an 
agent  under  the  influence  of  bribery  or  to  the  knowledge  of 
the  other  party,  in  fraud  of  the  principal,  is  voidable,  at  his 
option.3  In  such  a  case  the  principal  may,  at  his  election, 
rescind  the  contract,  or  he  may  maintain  an  action  to  recover 
damages  against  them  for  the  wrong.4  Thus,  where  an  agent 
was  induced  by  bribery  to  enter  into  a  contract,  it  was  held 
that  the  principal  was  entitled,  not  merely  to  recover  from 
the  agent  the  amount  of  the  bribe,  but,  in  an  action  against 
the  other  party,  to  recover  damages  for  the  fraud.  "The 
agent,"  said  Lord  Esher,  "has  been  guilty  of  two  distinct  and 
independent  frauds;  the  one  in  his  character  of  agent,  the 
other  by  means  of  his  conspiracy  with  the  third  person  with 
whom  he  has  been  dealing.  Whether  the  action  by  the 
principal  against  the  third  person  was  the  first  or  the  sec- 
ond must  be  wholly  immaterial.  The  third  person  was  bound 
to  pay  back  the  extra  price  which  he  had  received,  and  he 
could  not  absolve  himself  or  diminish  the  damages  by  rea- 
son of  the  principal  having  recovered  from  the  agent  the 
bribe  which  he  had  received."  •  So,  where  a  member  of  the 

§§  78-79.     i  Tuckwell  v.  Lambert,  5  Cush.  (Mass.)  23. 
t  Perkins  v.  Evans,  61  Iowa,  35,  15  N.  W.  584. 

•  Ante,  p.   229. 

4  Mayor  of  Salford  v.  Lever  [1891]  1  Q.  B.  168;  Glaspie  v.  Kea- 
tor,  5  C.  O.  A.  474,  56  Fed.  203;  City  of  Findlay  v.  Pertz,  13  C.  O. 
A.  559,  66  Fed.  427,  437,  29  I*  R.  A.  188;  City  of  Boston  v.  Sim- 
mons, 150  Mass.  461,  23  N.  E.  210,  6  L.  R.  A.  629,  15  Am.  St  Rep. 
230.  See,  also,  Panama  Tel.  Co.  v.  India  Rubber  Co.,  L.  R.  10 
Cb.  515. 

•  Mayor  of  Salford  v.  Lever  [1891]  1  Q.  B.  168. 


328  LIABILITY  OF  THIRD   PERSON  TO  PRINCIPAL*  (Ch.  12 

water  board  of  a  city  and  a  third  person  combined  to  purchase, 
in  the  name  of  the  latter,  land  which  should  afterwards  be 
purchased  by  the  board  at  an  advanced  price,  and  the  profits 
be  divided,  and  the  purpose  was  effected,  it  was  held  that 
both  were  alike  liable  for  the  injury  sustained  by  the  city. 
"The  abuse  of  trust  of  which  the  agent  is  guilty,  with  his 
[the  other's]  knowledge  and  co-operation,"  said  the  court, 
"is  a  wrong  for  which  both  are  liable,  as  the  injury  to  the 
principal  is  the  result  of  their  combined  action."  ' 

LOSS  OF  SERVICE  CAUSED  BY  WRONGFUL  ACT. 

80.  When  a  third  person,  by  his  wrongful  act  inflicted  upon 
a  servant,  deprives  the  master  of  his  services,  or  know- 
ingly entices  from  the  service  of  the  master  a  servant 
who  is  employed  under  a  contract,  such  person  is 
liable  to  the  master  for  the  lose  of  service  thereby 
caused. 

A  master  may  recover  for  the  actual  damage  he  may  suffer 
by  the  wrongful  act  of  a  third  person  inflicted  upon  his  serv- 
ant whereby  he  is  deprived,  in  whole  or  in  part,  of  the  lat- 
ter's  services.1  Thus  action  lies  for  assault  and  battery  upon 
a  servant,2  for  false  arrest  or  imprisonment,8  or  for  negli- 
gence impairing  his  ability  to  serve.4  This  doctrine  appears 
to  be  equally  applicable  where  the  relation  is  that  of  principal 
and  agent,  provided  a  contract  of  employment  exists,  giving 
the  principal  a  right  to  the  agent's  services. 

While  a  contract  imposes  no  liability  upon  one  who  is  not 
a  party  to  it,  an  action  to  recover  damages  for  malicious 

«  City  of  Boston  v.  Simmons,  150  Mass.  461,  23  N.  E.  210,  6 
L.  R.  A.  629,  15  Am.  St.  Rep.  230. 

§  80.     il  Jaggard,  Torts,  634. 

zFluker  v.  Railroad  Co.,  81  Ga.  461,  8  S.  E.  529,  2  L.  R.  A. 
843,  12  Am.  St.  Rep.  328. 

»  Woodward  v.  Washburn,  3  Denio  (N.  Y.)  369;  St  Johnsbury  & 
L.  0.  R.  Co.  v.  Hunt,  55  Vt.  570,  45  Am.  Rep.  639. 

*  McCarthy  v.  Guild,  12  Mete.  (Mass.)  291;  Ames  v.  Railroad  Co., 
117  Mass.  541,  19  Am.  Rep.  426. 


§  80)       LOSS   OP  SERVICE   CAUSED  BY   WRONGFUL  ACT.          329 

interference  with  contract  has  become  recognized  in  Eng- 
land B  and  in  some  jurisdictions  in  this  country.6  When  the 
contract  is  between  master  and  servant,  there  is  probably  no 
conflict  that  action  lies.  Knowingly  enticing  from  the  serv- 
ice of  his  master  a  servant  who  is  employed  under  a  contract 
is  an  actionable  wrong,  even  in  jurisdictions  which  do  not 
extend  the  doctrine  to  other  contracts.7  It  seems  that  the 
existence  of  a  contract  giving  the  plaintiff  a  right  to  the  serv- 
ices is  necessary.8  Whether,  if  the  rule  is  exceptional  in  its 
application  to  contracts  of  employment,  it  extends  to  all 
cases  where  a  person  is  employed  to  give  his  personal  serv- 
ices under  the  direction  of  the  employer,  there  is  disagree- 
ment. In  England  it  has  been  held  that  such  an  action  lies 
for  wrongfully  procuring  an  opera  singer  to  break  her  con- 
tract with  the  manager  of  a  theater.9  In  a  similar  case  in 
Kentucky  it  was  held  that  the  action  could  not  be  maintained, 
because  it  was  not  the  policy  of  the  law  to  restrict  competi- 
tion, whether  concerning  property  or  personal  services,  and 
the  only  occasion  for  more  stringent  regulation  of  the  latter 
is  where  some  one  of  the  domestic  relations  exists.10 

»  Lumley  v.  Gye,  2  El.  &  B.  216;  Bowen  v.  Hall,  6  Q.  B.  D.  339; 
Temperton  v.  Russell  [1893]  1  Q.  B.  376. 

«  Angle  v.  Railroad  Co.,  151  U.  S.  1,  14  Sup.  Ct.  240,  38  L.  Ed. 
55.  See  1  Jaggard,  Torts,  634;  Clark,  Contr.  511. 

7  Walker  v.  Cronin,  107  Mass.  555;  Bixby  v.  Dunlap,  56  N.  H. 
456,  22  Am.  Rep.  475;  Noice  v.  Brown,  39  N.  J.  Law,  569;  Jones 
v.  Blocker,  43  Ga.  331;  Salter  v.  Howard,  Id.  601;  Haskins  v. 
Royster,  70  N.  C.  601,  16  Am.  Rep.  780;  Huff  v.  Watkins,  15  S. 
a  82,  40  Am.  Rep.  680. 

«  Nicol  v.  Marlyn,  2  Esp.  734;  Sykes  v.  Dixson,  9  Ad.  &  E.  693; 
Walker  v.  Cronin,  107  Mass.  555,  563;  Campbell  v.  Cooper,  34  N. 
H.  49. 

But  see  Keane  v.  Boycott,  2  H.  Bl.  511;  Cox  v.  Munsey,  6  C.  B. 
(N.  S.)  375;  Salter  v.  Howard,  43  Ga.  601. 

»  Lumley  v.  Gye,  2  El.  &  B.  216  (see  remarks  of  Crompton,  J., 
p.  227). 

"It  extends  to  every  grade  of  service."  Per  Rodman,  J.,  In  Has- 
kins v.  Royster,  70  N.  C.  601,  16  Am.  Rep.  780. 

loBourlier  v.  Macauley,  91  Ky.  135,  15  S.  W.  60,  11  L.  R.  A. 
550.  34  Am.  St.  Rep.  171. 


330  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 


PART  III. 

RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD  PERSON. 


CHAPTER  XTTI. 

LIABILITY  OF  AGENT  TO  THIRD  PERSON  (INCLUDING  PAR- 
TIES TO  CONTRACTS). 

81.  Liability  on  Authorized  Contract. 

82.  Nature  of  Contract. 

83.  Parties  to  Instrument  under  Seal. 

84.  Parties  to  Negotiable  Instrument. 

85.  Parol  Evidence. 

86.  Parties  to  Contract  not  Sealed  or  Negotiable. 

87.  Written  Contract 
87a.  Parol  Evidence. 

88.  Oral  Contract 

89.  Public   Agent. 

90.  When  Apparent  Agent  Is   Real  Principal. 

91.  When   Agent  Acts  Without  Authority— Implied   Warranty 

of  Authority. 

92.  Measure  of  Damages  for  Breach  of  Warranty. 

93.  Liability  on  Quasi  Contract— Money  Received  in  Good  Faith. 

94.  Money   Obtained   Wrongfully. 

95.  Money  Received  from  Principal  for  Third  Person. 

96.  Liability  for  Torts. 

97.  Nonfeasance. 

LIABILITY  ON  AUTHORIZED  CONTRACT. 

81.  When  an  agent  duly  makes  an  authorized  contract  in  the 
name  of  his  principal,  the  principal  only  is  liable 
thereon.  When  an  agent  contracts  personally,  al- 
though on  behalf  of  his  principal,  he  is  personally 
liable  on  the  contract.  Whether  the  agent  is  to  be 
deemed  to  have  contracted  personally,  or  merely  as 
agent,  depends  npon  the  nature  and  terms  of  the  par- 
ticular contract. 


81-82)      LIABILITY   ON  AUTHORIZED   CONTRACT.  331 


SAME- NATURE  OF  CONTRACT. 

82.  The  rule*  to  be  applied  to  the  construction  of  the  par- 
ticular contract  are  determined  by  its  nature,  and  de- 
pend upon  whether  the  contract  is— 

(1)  A  sealed  instrument; 

(2)  A   negotiable   instrument; 

(3)  An  instrument  neither  sealed  nor  negotiable;    or 

(4)  An  oral  contract. 

Whenever  the  agent  acting  within  the  scope  of  the  au- 
thority which,  as  against  the  other  party,  he  must  be  deemed 
to  have,1  contracts  in  the  name  of  the  principal,  the  princi- 
pal, and  he  only,  is  bound.2  And  although  the  contract  be 
unauthorized,  if  it  be  made  in  the  name  of  the  principal,  and 
he  duly  ratifies  it,  he,  and  he  only,  is  bound.8  If  the  con- 
tract is  made  in  the  name  of  the  principal,  but  is  not  within 
the  scope  of  the  agent's  authority,  and  is  not  ratified,  neither 
principal  nor  agent  is  bound  by  the  contract,4  although  the 
agent  may  be  liable  to  the  other  party  upon  his  so-called 
warranty  of  authority.5  It  may  be,  however,  that  the  agent 
in  the  execution  or  attempted  execution  of  his  authority 
contracts  in  such  manner  as  to  bind  himself.  In  such  case 
he  is  personally  liable  on  the  contract;  and,  if  the  contract 
was  within  the  scope  of  his  authority,  the  principal,  although 
undisclosed,  is  liable  also,6  but  if  the  contract  was  not  within 
the  scope  of  the  authority  only  the  agent  is  liable.7  In  short, 
in  the  execution  or  attempted  execution  of  his  authority 
the  agent  may  so  contract  as  to  bind  the  principal  only,  or 
to  bind  the  principal  and  himself,  or  to  bind  himself  only, 
either  upon  the  contract  or  upon  a  warranty  of  authority, 
or  to  bind  neither.  It  will  be  convenient  at  this  point  to 
discuss  the  effect  which,  the  manner  of  execution  has  upon 
the  liabilities  thereby  incurred  by  the  principal  as  well  as  by 

§'§  8*1-82.     i  Ante,  p.  180.       *  Tost,  p.  369.          «  Ante,  p.  231  et  seq. 
2  Ante,  p.  181.  «  Post,  p.  368.          T  Post,  p.  369. 

•  Ante,  p.  81. 


332  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

the  agent  toward  the  other  party  to  the  contract,  and  in- 
cidentally, to  some  extent,  the  reciprocal  liability  of  the  other 
party  toward  the  person  so  bound.  The  question  whether 
the  agent  is  to  be  deemed  to  contract  personally,  or  merely  as 
agent,  depends,  as  a  rule,  upon  the  intention  of  the  parties 
as  disclosed  by  the  terms  of  the  contract.  If  the  contract 
is  in  writing  the  construction  is  for  the  court,  and  if  not  re- 
duced to  writing  the  intention  of  the  parties  is  for  the  jury. 
In  case  of  instruments  under  seal  and  negotiable  instru- 
ments, however,  technical  rules  of  construction  prevail.  We 
shall,  therefore,  consider  the  liability  of  the  parties  upon 
these  different  classes  of  contracts  in  the  following  order: 
(i)  Instruments  under  seal ;  (2)  negotiable  instruments ;  (3) 
other  written  contracts ;  (4)  oral  contracts. 

PARTIES  TO  INSTRUMENT  UNDER  SEAL. 

83.  To  render  the  principal  liable  npon  a  sealed  instrument 
when  executed  by  his  agent,  he  must  be  described  as 
a  party  thereto,  and  it  must  be  executed  in  his  name. 
"When  an  agent  executes  in  his  own  name  a  sealed  in- 
strument which  by  its  terms  purports  to  be  binding 
upon  himself,  he  is  personally  liable  thereon,  although 
he  is  therein  described  as  contracting,  and  executes 
the  instrument,  as  agent  of  a  named  principal. 
EXCEPTION:  PUBLIC  AGENTS.  These  rules  do  not  apply 
to  public  agents. 

No  one  who  is  not  named  in  and  described  as  a  party  to 
a  sealed  instrument  can  be  charged  or  maintain  an  action 
upon  it.  The  instrument,  if  made  by  an  agent,  to  be  bind- 
ing upon  the  principal,  must  be  executed  in  his  name.1  The 
act  must  purport  to  be  the  act  of  the  principal,  and  not  of 

S  88.     »  Ante,  p.  243. 

As  to  the  rule  where  the  seal  is  superfluous,  ante,  p.  244. 

The  common-law  rule  governing  execution  of  sealed  instruments 
by  agents  is  not  changed  by  a  statute  dispeusing  with  seals.  Jones 
V.  Morris,  61  Ala.  518.  Contra,  Gibbs  v.  Dickson,  33  Ark.  107. 


§  83)  PARTIES  TO   INSTRUMENT  UNDER  SEAL.  333 

the  attorney  who  is  authorized  to  do  it.*  The  usual  and 
approved  form  of  signature  of  a  deed  by  attorney  is  by  sign- 
ing the  name  of  the  principal,  and  adding,  "by  B.,  His  At- 
torney." No  particular  form  of  words,  however,  is  required 
to  be  used,  provided  the  act  purport  to  be  done  in  the  name 
of  the  principal.  It  is  not  even  necessary  that  it  appear 
upon  the  face  of  the  instrument  that  it  is  executed  by  attor- 
ney.8 An  instrument  in  terms  purporting  to  be  the  bond  or 
deed  of  A.,  and  executed  by  his  agent,  who  signs  "B.,  for 
A.,"  is  no  less  the  act  of  A.  than  if  signed  "A-,  by  B.,  His 
Attorney,"  or  "A.,  by  B."  *  On  the  other  hand,  an  instru- 
ment purporting  to  be  the  bond  or  deed  of  "B.,  Agent," 
or  of  "B.,  Agent  for  A.,"  is  not  the  act  of  A.,  but  of  B.,  who 
is  himself  bound;  the  addition  of  the  words  "Agent"  or 
"Agent  for  A."  being  held  to  be  mere  descriptio  personae.5 
For  example,  a  deed  which  recited  the  power  of  the  attorney, 
B.,  by  virtue  of  a  vote  of  the  A.  Proprietors,  authorizing 
him  to  execute  deeds  in  their  behalf,  but  which  ran  in  the 

*  "It  was  resolved  that  when  any  has  authority,  as  attorney,  to  do 
any  act,  be  ought  to  do  It  in  his  name  who  gives  the  authority; 
for  he  appoints  the  attorney  to  be  in  his  place,  and  to  represent  his 
person;    and  therefore  the  attorney  cannot  do  it  in  his  own  name, 
nor  as  his  proper  act,  but  in  the  name,  and  as  the  act,  of  him  who 
gives  the  authority."     Combes'  Case,  9  Co.  75a. 

a  Wilks  v.  Back,  2  East,  142,  per  Lawrence,  J.;  Forsyth  v.  Day, 
41  Me.  382;  Devinney  v.  Reynolds,  1  Watts  &  S.  (Pa.)  328;  Berkey 
v.  Judd,  22  Minn.  287;  Deakin  v.  Underwood,  37  Minn.  98,  33  N.  W. 
318,  5  Am.  St.  Rep.  827.  Contra,  Wood  v.  Goodridge,  6  Gush.  (Mass.) 
117,  52  Am.  Dec.  771,  per  Fletcher,  J.  See  Mechem,  Ag.  §§  427-429. 

*  Wilks  v.  Back,  2  East,  142;  Mussey  v.  Scott,  7  Gush.  (Mass.)  215, 
54  Am.  Dec,  719;    Hutchins  v.  Byrnes,  9  Gray  (Mass.)  367;    Hale  v. 
Woods,  10  N.  H.  470,  34  Am.  Dec.  176;   Whitehead  v.  Reddick,  34  N. 
C.  95;  Redmond  v.  Coffin,  17  N.  C.  437. 

»  Taft  v.  Brewster,  9  Johns.  (N.  Y.)  334,  6  Am.  Dec.  280;  Stone  v. 
Wood,  7  Cow.  (N.  Y.)  453,  17  Am.  Dec.  529;  Fullam  v.  Inhabitants 
of  West  Brookfield,  9  Allen  (Mass.)  1;  Dayton  v.  Warne,  43  fl.  J. 
Law,  659;  Bryson  v.  Lucas,  84  N.  C.  680,  37  Am.  Rep.  634.  Of. 
Magill  v.  Hinsdale,  6  Conn.  464a,  16  Am.  Dec.  70. 


334  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

name  of  B.,  concluding,  "In  testimony  that  this  instrument 
shall  be  forever  hereafter  acknowledged  by  the  said  pro- 
prietors as  their  act  and  deed,  and  be  held  good  and  valid 
by  them,  I,  the  said  B.,  by  virtue  of  the  aforesaid  vote,  do 
hereunto  set  my  hand  and  seal,"  and  signed  with  B.'s  name 
and  a  seal,  was  held  to  be  the  deed  of  B.,  who  was  liable 
on  the  covenants.6  Not  only  must  the  principal  be  described 
as  party,  but  the  execution  must  be  in  his  name.  Thus,  a 
deed  which  ran  in  the  name  of  "The  A.  Company,  a  corpora- 
tion, by  B.,  Their  Treasurer,"  concluding,  "In  witness  where- 
of I,  the  said  B.,  in  behalf  of  said  company,  and  as  their 
treasurer,  have  hereunto  set  my  hand  and  seal,"  signed  "B., 
Treasurer  of  the  A.  Company,"  and  acknowledged  by  "B., 
Treasurer,"  to  be  his  free  act  and  deed,  was  held  not  to  be 
the  deed  of  the  corporation,  and  to  convey  no  title.7 

Nevertheless,  if  the  instrument,  read  as  a  whole,  purports 
to  be  the  deed  of  the  principal,  it  will  be  allowed  to  take 
effect  as  such,  notwithstanding  irregularities  or  informalities 
in  the  description  of  the  parties,  or  in  the  testimonium  clause, 
or  in  the  signature,  which  are  not  repugnant  to  that  purport, 
provided  that  one  part  so  refers  to  another  part  as  to  sup- 
ply what  is  defective  in  the  others.8  For  example,  an  in- 
denture of  lease  which  described  the  second  party  as  "B., 
President  of  the  A.  Company,"  and  throughout  which  the 
parties  were  mentioned  as  of  the  first  or  second  part,  and 
the  pronoun  "he"  was  everywhere  used  in  referring  to  the 
party  of  the  second  part,  concluding,  "In  testimony  whereof 
the  said  parties  have  hereunto  set  their  hands  and  seals," 
but  signed  "A.  Company,  [Seal]  by  B.,  President,"  was 

e  Stinchfleld  v.  Little,  1  Me.  231,  10  Am.  Dec.  65.  See,  also,  Elwell 
v.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126  (an  extreme  case). 

i  Brinley  v.  Mann,  2  Cush.  (Mass.)  337,  48  Am.  Dec.  669. 

s  McDaniels  v.  Manufacturing  Co.,  22  Vt.  274;  Bradstreet  v.  Baker, 
14  R.  I.  546;  Shanks  v.  Lancaster,  5  Grat.  (Va.)  110.  50  Am.  Dec. 
108;  Northwestern  Distilling  Co.  v.  Brant,  69  111.  658,  18  Am.  Rep. 
631;  Butterfield  v.  Beall,  3  Ind.  203;  Martin  v.  Almond,  25  Mo.  313; 
City  of  Kansas  v.  Railroad  Co.,  77  Mo.  180. 


§  83)  PARTIES  TO   INSTRUMENT  UNDER  SEAL.  335 

held  to  be  the  lease  of  the  company,  against  which  an  action 
of  covenant  lay  thereon.  "The  conclusion  of  a  lease,  as  well 
as  its  commencement,"  said  the  court,  "may  be  looked  to  for 
the  description  of  the  parties.  The  conclusion  describes  them 
to  be  those  persons  who  have  set  their  hands  and  seals  to 
the  instrument,  and  it  is  the  signature  and  seal  of  the  A. 
Company  which  are  set  thereto,  not  that  of  B."  •  And,  con- 
versely, a  contract  under  seal  "between  the  A.  Company, 
party  of  the  first  part,  by  B.,  agent,  and  C.  and  D.,  parties 
of  the  second  part,"  the  stipulations  of  which  purported 
to  be  between  "the  said  party  of  the  first  part"  and  "the  said 
parties  of  the  second  part,"  concluding,  "In  witness  whereof 
the  parties  have  hereunto  affixed  their  hands  and  seals," 
and  signed  "B.,  Agent  [L.  S.],"  was  held  to  be  the  contract 
of  the  company.  Here,  had  the  signature  read  "B.,  for  A 
Company,"  or  "B.,  Agent  for  A.  Company,"  the  execution, 
taken  in  connection  with  what  preceded  it,  must  manifestly 
have  been  understood  as  an  execution  in  the  name  of  the 
company.  Had  the  words  "for  A.  Company"  been  added  to 
the  signature,  "those  words,"  said  the  court,  "would  ex- 
press nothing  which  is  not  expressed  without  them  by  the 
signature,  taken  in  connection  with  the  testimonium  clause 
and  covenant  which  preceded  it.  The  seal  is  stated  in  said 
clause  to  be  the  seal  of  the  principals,  and  the  hand  to  be 
their  hand,  evidently  because  the  agent  signed  for  them."  10 

It  does  not  follow  that  an  instrument  made  by  an  agent 
is  binding  either  upon  the  principal  or  upon  the  agent;  for 
it  may  be  so  defective  in  the  manner  of  its  execution  as  not 
to  be  binding  upon  the  principal,  and  yet  not  purport  to  bind 
the  agent.  If  the  agent  employs  such  terms  as  legally  to  im- 
port an  undertaking  by  the  principal  only,  the  contract  can 
bind  no  one  but  the  principal,  but  can  bind  him  only  provided 
its  execution  conforms  to  the  technical  requirements ;  if  it 

•  Northwestern  Distilling  Co.  v.  Brant,  69  111  658,  18  Am.  Rep. 
631. 

"•  Bradstreet  v.  Baker,  14  R.  I.  546. 


336  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

fails  to  conform  to  the  technical  requirements,  it  does  not 
become  binding  upon  the  agent  merely  because  he  has  signed 
it,  since  the  terms  do  not  import  a  personal  undertaking.11 

Same — Public  Agents. 

A  different  rule  prevails  in  respect  to  public  agents.  Where 
a  contract  is  entered  into  or  a  deed  executed  in  behalf  of 
the  government  by  an  authorized  public  agent,  notwithstand- 
ing that  the  agent  may  have  executed  it  in  his  own  name,  it 
is  the  contract  or  deed  of  the  government,  who  alone  is 
responsible.  To  be  binding  upon  the  agent,  his  intent  to  be 
bound  must  clearly  appear.18 

PARTIES  TO  NEGOTIABLE  INSTRUMENT. 

84.  To  render  the  principal  liable  upon  a  negotiable  instru- 
ment when  executed  by  his  agent,  he  must  be  named 
as  a  party  thereto,  and  it  must  appear  therefrom  that 
it  was  executed  for  him  and  on  his  behalf.  When  an 
agent  executes  a  negotiable  instrument  in  his  own 
name,  unless  he  clearly  indicates  therein  that  he  ex- 
ecutes it  as  agent  for  and  on  behalf  of  the  principal, 
he  is  personally  liable  thereon.  The  mere  addition 
to  the  name  or  signature  of  the  agent  of  words  de- 
scribing him  as  agent  does  not  exempt  him  from  per- 
sonal liability,  whether  the  principal  is  named  there- 
in or  not. 

EXCEPTION  1:      PUBLIC  AGENTS.   These  rules  do  not  ap- 
ply to  public  agents. 

EXCEPTION  2:      ACCEPTANCE.   Where  a  bill  of  exchange 
is    drawn    on    the    principal,    and    is    accepted    by    the 

11  Abbey  v.  Chase,  6  Cush.  (Mass.)  54;    Hopkins  v.  Mehaffy,  11 
Serg.  &  R.  (Pa.)  126;  Whitford  v.  Laidler,  94  N.  Y.  145,  46  Am.  Rep. 
131;   Neufeld  v.  Beidler,  37  111.  App.  34. 

Such  instruments  have  frequently  been  enforced  against  the  prin- 
cipal in  equity.  Johnson  v.  Johnson,  1  Dana  (Ky.)  364;  Love  v.  Min- 
ing Co.,  32  Cal.  639,  91  Am.  Dec.  602;  Gerdes  v.  Moody,  41  Cal.  335; 
Daughtrey  v.  Knolle,  44  Tex.  450. 

12  Union  v.  Wolsely,  1  T.  R.  674;    Hodgson  v.  Dexter,  1  Cranch 
(U.  S.)  345,  2  L.  Ed.  130;   Knight  v.  Clark,  48  N.  J.  Law,  22,  2  Atl. 
780,  57  Am.  Rep.  534;   post,  pp.  354,  367. 


84-85)      PASTIES   TO   NEGOTIABLE   IN8TBUMENT.  337 

agent,  unlesi  it  be  required  by  statnte  that  the  signa- 
ture of  the  acceptor  appear  in  the  acceptance  the  prin- 
cipal is  deemed  to  be  the  acceptor,  whether  the  ac- 
ceptance is  in  him  name  or  in  that  of  the  agent. 


S AME— FAROL   EVIDENCE. 

85.  Where  a  negotiable  instrument  is  executed  by  an  agent,  it 
must  be  determined  by  construction  of  the  instrument 
•whether  the  principal  or  the  agent  is  bound  thereby, 
and  parol  evidence  to  show  a  different  intention  than 
that  thereby  disclosed  is  inadmissible. 

EXCEPTION  1:  IN  GENERAL.  In  many  jurisdictions,  but 
not  in  all,  if  upon  the  face  of  the  instrument  there 
is  any  indication  that  the  person  executing  it  is  agent 
of  another  person,  parol  evidence  is  admissible  be- 
tween the  original  parties,  and  against  a  purchaser 
with  notice,  to  show  that  it  was  the  intention  of  the 
parties  to  bind  the  principal,  and  not  the  agent;  and 
if  such  intention  is  shown  the  instrument  is  held  to 
be  binding  upon  the  principal,  and  not  upon  the  agent. 

EXCEPTION  2:  INSTRUMENT  PAYABLE  TO  CASHIER. 
'Where  an  instrument  is  drawn  or  indorsed  to  a  per- 
son as  cashier  (or  other  fiscal  officer)  of  a  bank  (or 
corporation),  it  is  deemed  prima  facie  payable  to  the 
bank  (or  corporation)  of  which  he  is  such  officer,  and 
may  be  negotiated  by  either  the  indorsement  of  the 
bank  (or  corporation)  or  the  indorsement  of  the  of- 
ficer. » 

Negotiable  Instrument. 

No  one  who  is  not  named  in  or  described  as  a  party  to 
a  negotiable  instrument  can  be  charged  or  maintain  an 
action  upon  it.*  Parol  evidence  to  show  that  the  maker 
was  acting  as  agent  for  an  undisclosed  or  unnamed  princi- 
pal, for  the  purpose  of  charging  him  or  enabling  him  to  sue, 

§§  fM-85.  i  Folio  wing  Neg.  Inst.  Law,  f  72  (N.  T.);  Norton,  B. 
&  N.  (3d  Ed.)  447.  How  far  this  rule  Is  to  be  extended  to  officers 
other  than  bank  cashiers,  in  jurisdictions  where  the  negotiable  instru- 
ments laws  has  not  been  enacted,  is  not  clear.  Post,  p.  351. 

*  Ante,  p.  244. 

TUT.P.&  A,— 22 


338  UABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

is  therefore  inadmissible.8  This  rule  rests  upon  the  pe- 
culiar nature  of  the  instrument.  Parol  evidence  to  show 
that  a  person  who  appears  on  the  face  of  the  instrument 
to  be  a  party  is  not  such  is  also  inadmissible.  This  rule 
rests  upon  the  ground  that  it  is  not  competent  by  parol  evi- 
dence to  contradict  the  terms  of  a  written  contract,  and  is  not 
confined  to  negotiable  instruments.*  As  in  the  case  of  a 
deed,  therefore,  the  instrument,  if  made  by  an  agent,  to  be 
the  contract  of  the  principal,  must  as  a  rule  be  made  in  his 
name;  and,  if  matfe  in  the  name  of  the  agent,  he,  and  he 
only,  is  a  party. 

Frequently,  however,  when  both  are  named,  it  is  difficult 
to  determine  from  the  instrument  itself  whether  the  promise 
is  that  of  the  principal  or  of  the  agent;  and,  even  when  only 
t:he  agent  is  named,  the  instrument  may  contain  some  indi- 
cation of  an  intention  to  bind  the  principal.  Unfortunately 
the  courts  are  not  agreed  as  to  whether  it  is  ever  permissible 
to  resort  to  extrinsic  evidence  to  ascertain  the  intention 
of  the  parties,  nor  are  the  courts  which  hold  it  permissible 
to  resort  to  extrinsic  evidence  when  the  intention  is  not 
clear  in  accord  as  to  the  particular  cases  in  which  the  excep- 
tion is  applicable. 

Parol  Evidence  to  Determine  Whether  Principal  or  Agent 

is  Party. 

The  exception  applicable  to  negotiable  instruments  which 
excludes  extrinsic  evidence  for  the  purpose  of  charging  or 
giving  a  right  of  action  to  an  unnamed  principal  is  derived 
from  the  nature  of  negotiable  paper,  which,  being  made  for 
the  very  purpose  of  being  transferred  from  hand  to  hand, 

»  It  may  always  be  shown,  however,  that  the  principal  was  doing 
business  in  the  agent's  name,  which  may  not  infrequently  happen 
in  case  of  a  partnership  or  corporation,  and  that  the  name  signed  is 
hence,  in  effect,  the  name  of  the  principal,  Melledge  v.  Iron  Co.,  5 
Cush.  (Mass.)  158,  51  Am.  Dec.  59;  Bank  of  Rochester  v.  Monteath, 
1  Denio  (N.  Y.)  402,  43  Am.  Dec.  681;  Rumsey  v.  Briggs,  139  N.  Y. 
323,  34  N.  E.  929;  Pease  v.  Pease,  35  Conn.  131,  95  Am.  Dec.  225. 

*  Ante,  p.  333. 


§§  84-85)      PARTIES  TO   NEGOTIABLE   INSTRUMENT.  339 

must  indicate  on  its  face  who  the  maker  is.  Moreover,  any 
additional  liability  not  expressed  in  the  form  of  the  paper 
could  not  be  negotiable.5  Where  these  principles  are  strictly 
applied,  it  is  held  that  any  ambiguity  arising  upon  the  face 
of  the  instrument,  in  determining  whether  it  is  the  promise 
of  the  principal  or  of  the  agent,  must  be  solved  without  the 
aid  of  extrinsic  testimony,  and  that  the  liability  of  the  parties 
must  be  determined  from  the  instrument  itself.' 

Therefore,  when  it  does  not  otherwise  sufficiently  appear 
from  the  instrument  that  the  agent  executed  it  for  his  prin- 
cipal, although  he  adds  to  his  signature  words  which,  while 
descriptive  of  the  relation  in  which  he  stood  to  another, 
are  nevertheless  construed  by  the  courts  to  be  mere  de- 
scriptio  personae — such  as  "agent,"  "trustee,"  "treasurer," 
"agent  of  A.,"  "treasurer  of  the  A.  Company,"  and  the  like 
— evidence  is  inadmissible  to  show  that  it  was  the  intention  of 
the  parties  that  the  contract  should  bind  the  principal,  and 
the  agent  is  personally  bound.7 

The  tendency  of  the  courts,  however,  has  been  to  depart 
from  this  strict  rule.  It  is  universally  conceded,  indeed,  that 
if  there  is  nothing  on  the  face  of  the  paper  to  indicate  the 
relation  of  the  signer  as  agent  to  some  other  person,  ex- 
trinsic evidence  to  discharge  him  or  to  charge  an  unnamed 
or  undisclosed  principal  is  inadmissible.  But  if  such  indica- 
tion does  appear,  as  where  the  maker  adds  to  his  signature 
words  such  as  "Agent,"  "Treasurer  of  the  A.  Company," 

•  Per  Gray,  J.,  in  Barlow  v.  Society,  8  Allen  (Mass.)  460. 

•  Barlow  v.  Society,  8  Allen  (Mass.)  460. 

T  Williams  v.  Bobbins,  16  Gray  (Mass.)  77,  77  Am.  Dec.  396; 
Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101;  Davis  v.  England,  141 
Mass.  587,  6  N.  E.  731;  Arnold  v.  Sprague,  34  Vt  402;  Sturdivant  v. 
Hull,  59  Me.  172,  8  Am.  Bep.  409  (cf.  Bendell  v.  Harriman,  75  Me. 
497,  46  Am.  Bep.  421);  Collins  v.  Insurance  Co.,  17  Ohio  St  215,  93 
Am.  Dec.  612;  Bank  v.  Cook,  38  Ohio  St.  442;  Bobinson  v.  Bank, 
44  Ohio  St.  441,  8  N.  E.  583,  58  Am.  Bep.  829;  Williams  v.  Bank,  83 
Ind.  237;  Hypes  v.  Griffin,  89  111.  134,  31  Am.  Bep.  71;  Scanlan  v. 
Keith,  102  111.  634,  40  Am.  Bep.  624. 


340  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Ch.  13 

and  the  like,*  or  where  the  indication  otherwise  appears  upon 
the  face  of  the  instrument,*  it  is  very  generally  held  that,  al- 
though the  added  words  are  prima  facie  mere  descriptio 
personae,  yet,  if  it  was  understood  between  the  immediate 
parties  that  the  contract  was  in  fact  the  contract  of  the  prin- 
cipal, parol  evidence  of  such  intention  is  admissible,  as  be- 
tween them,  and  as  between  the  maker  and  a  subsequent 
holder,  who  took  with  knowledge  of  the  actual  facts,  for  the 
purpose  of  showing  that  the  obligation  is  in  fact  the  prin- 
cipal's. "The  evidence  is  not  adduced,"  it  is  said,  "to  dis- 
charge the  agent  from  a  personal  liability  which  he  has  as- 

•  Metcalf  v.  Williams,  104  U.  S.  93,  26  L.  Ed.  665;  Case  Mfg.  Co. 
v.  Soxman,  138  U.  S.  431,  11  Sup.  Ct.  360,  34  L.  Ed.  1019;  Kean  v. 
Davis,  21  N.  J.  Law,  683,  47  Ain.  Dec.  182;  Brockway  v.  Allen,  17 
Wend.  (N.  Y.)  40,  Haile  v.  Peirce,  32  Md.  327,  3  Am.  Rep.  139; 
Laflin  &  Rand  Powder  Co.  v.  Sinsheimer,  48  Md.  411.  30  Am.  R^o. 
472;  Lock  wood  v.  Coley  (C.  C.)  22  Fed.  192;  Martin  v.  Smith,  65 
Miss.  1,  3  South.  33;  Keidan  v.  Winegar,  95  Mich.  430,  54  N.  W.  901, 
20  L.  R.  A.  705;  Second  Nat.  Bank  v.  Steel  Co.,  155  Ind.  581,  58  N. 
E.  833  (overruling  earlier  decisions);  La  Salle  Nat.  Bank  v.  Rock  & 
Rye  Co.,  14  111.  App.  141;  Brunswick-Balk e-Collender  Co.  v.  Boutell, 
45  Minn.  21,  47  N.  W.  2G1;  McClellan  v.  Reynolds,  49  Mo.  312;  Kline 
v.  Bank,  50  Kan.  91,  31  Pac.  688,  18  L.  R.  A.  533,  34  Am.  St.  Rep. 
107;  Miller  v.  Way,  5  S.  D.  468,  59  N.  W.  467;  Janes  v.  Bank,  9 
Okl.  546,  60  Pac.  290. 

9  Mechanics'  Bank  v.  Bank,  5  Wheat.  (U.  S.)  326,  5  L.  Ed.  100. 
In  this  case  a  check,  with  the  words  "Mechanics'  Bank  of  Alex- 
andria," at  the  top  and  in  the  margin,  drawn  on  the  Bank  of 
Columbia,  and  payable  to  the  order  of  P.  H.  Minor,  was  signed  Wm. 
Paton,  Jr.  Parol  evidence  was  admitted  to  show  that  he  was  cashier 
of  the  former  bank,  and  to  establish  the  official  character  of  the 
check.  Johnson,  J.,  said:  "The  appearance  of  the  corporate  name 
of  the  institution  on  the  face  of  the  paper  at  once  leads  to  the  belief 
that  it  is  a  corporate,  and  not  an  individual,  transaction;  to  which 
must  be  added  *  *  *  that  the  cashier  is  the  drawer,  and  the  teller 
the  payee,  and  the  form  of  ordinary  checks  deviated  from  by  the  sub- 
stitution of  'to  order'  for  'to  bearer.'  The  evidence,  therefore,  on  the 
face  of  the  bill  predominates  in  favor  of  its  being  a  bank  transac- 
tion," This  is  a  leading  case  upon  the  admission  of  parol  evidence, 
and  carries  the  doctrine  to  its  extreme  limit.  Post,  p.  844. 


§§  84r-85)      PARTIES  TO   NEGOTIABLE  INSTRUMENT.  341 

sumed,  but  to  prove  that  in  fact  he  never  incurred  that  liabili- 
ty; not  to  aid  in  the  construction  of  the  instrument,  but  to 
prove  whose  instrument  it  is."  10 

Inasmuch  as  this  rule,  or  exception,  is  confined  to  cases 
where  an  indication  of  the  representative  character  of  the 
maker  appears  upon  the  face  of  the  instrument,  it  would 
seem  that  it  should  be  applicable  even  against  a  subsequent 
holder  who  was  ignorant  of  the  actual  facts,  since  he  would 
be  charged  with  constructive  notice  of  whatever  appeared 
upon  the  face  of  the  instrument,  and  would  hence,  apparent- 
ly, be  put  upon  inquiry  as  to  the  circumstances  of  its  execu- 
tion. And  it  is  held,  where  this  rule  prevails,  that  the  am- 
biguity may  be  so  grave  as  to  charge  him  with  constructive 
notice.11  Nevertheless,  it  is  held  that  the  mere  addition  to 
the  signature  of  the  words  "Agent,"  "Trustee,"  "Treasurer," 
and  the  like  does  not  of  itself  make  third  persons  charge- 
able with  notice  of  any  representative  relation  of  the  signer.12 
As  to  what  indication  would  be  necessary  to  charge  a  pur- 
chaser with  notice,  it  is  impossible  to  formulate  any  rule. 

When  Principal  Sound. 

Where  an  agent  draws  a  bill  or  makes  a  note  and  signs 
the  name  of  his  principal,  without  more,  the  principal  is 
bound.1*  Usually,  however,  he  indicates  in  some  manner 

10  Per  Green,  C.  J.f  In  Kean  v.  Davis,  21  N.  J.  Law,  683,  47  Am. 
Dec.  182. 

11  In  Metcalf  v.  Williams,  104  U.  S.  93,  26  L.  Ed.  665,  speaking  of 
a  check  in  ordinary  form,  signed  "B.,  Secy.     C.,  V.  Pres't,"  Bradley, 
J.,  said:     "It  is  unnecessary  to  determine  whether  the  form     *     *     * 
was  sufficient  to  charge  innocent  holders  of  the  check  with  notice  of 
its  character.    The  fact  that  it  bore  two  official  signatures    *    *    * 
is  so  unusual  on  the  hypothesis  of  its  being  an  individual  transac- 
tion, and  points  so  distinctly  to  an  official  origin,  that  it  may  very 
well  be  doubted  whether  any  holder  could  claim  to  be  innocently 
ignorant  of  its  true  character."     But  see  Casco  Nat.  Bank  v.  Clark, 
139  N.  Y.  307,  34  N.  E.  908,  36  Am.  St.  Rep.  705,  and  First  Nat.  Bank 
T.  Wallis,  150  N.  Y.  455,  44  N.  E.  1038. 

12  Metcalf  v.  Williams,  104  U.  S.  93,  26  L.  Ed.  665. 

is  Forsyth  v.  Day,  41  Me.  382;  First  Nat  Bank  v.  Loyhed,  28 
Minn.  396,  10  N;  W.  421. 


342  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Ch.  13 

that  the  signature  is  by  his  hand.  Any  one  of  the  follow- 
ing forms  of  signature  is  sufficient:  "A.,  by  B.,"  "B.,  for 
A.,"  or  "for  A.,  B.,"  14  "pro  A.,  B.,"  1B  "B.,  Agent  for  A."  16 
In  all  these  cases  it  appears  that  the  agent  subscribes  "for" 
the  principal,  or  by  procuration,  and  that  he  is  the  mere 
scribe.  The  variation  between  signing  as  agent  "for"  and 
agent  "of"  seems  very  slight,  but,  as  we  shall  see,  it  is  ma- 
terial.17 It  is  not  essential,  however,  that  the  signature 
should  be  in  any  of  the  above  forms,  if  it  otherwise  appear 
from  the  instrument  that  the  agent  signs  for  the  principal. 
Wherever  it  appears  upon  the  face  of  the  instrument  "made 
by  the  agent  of  one  named  therein,  and  whom  he  can  legally 
bind  thereby,  that  he  acts  as  agent  and  intends  to  bind  his 
principal,  the  law  will  give  effect  to  the  intention,  in  what- 
ever form  expressed."  18  Sufficient  indications  that  the  agent 
so  acts  and  intends  may  appear  in  the  recitals  or  other  terms 
embodied  in  the  instrument,  and  such  a  construction  may 
be  aided  by  the  fact  that  the  name  of  the  principal  is  printed 
at  the  head  or  in  the  margin  of  the  instrument,  taken  in  con- 
nection with  other  indications. 

Leaving  out  of  question  the  disagreement  whether  ex- 
trinsic evidence  is  ever  admissible,  "the  difficulty  is  not  in 
ascertaining  the  general  principles  which  must  govern  cases 
of  this  nature,  but  in  applying  them  to  the  different  forms 
and  shades  of  expression  in  particular  instruments."  18  In 

n  Ex  parte  Buckley,  14  M.  &  W.  469;  Alexander  v.  Sizer,  L.  R. 
4  Ex.  102;  Emerson  v  Manufacturing  Co.,  12  Mass.  237,  6  Am.  Dec. 
66;  Rice-v.  Grove,  22  Pick.  (Mass.)  158,  33  Am.  Dec.  724;  Olcott  v. 
Little,  9  N.  H.  259,  32  Am.  Dec.  357;  Rawlings  v.  Robson,  70  Ga.  595. 
See  Barlow  v.  Society,  8  Allen  (Mass.)  460. 

is  Long  v.  Colburn,  11  Mass.  97,  6  Am.  Dec.  160. 

i«  Ballou  v.  Talbot,  16  Mass.  461,  8  Am.  Dec.  146;  Jefts  v.  York, 
4  Gush.  (Mass.)  372,  50  Am.  Dec.  791;  Tiller  v.  Spradley,  39  Ga.  36. 
Cf.  De  Witt  v.  Walton,  9  N.  Y.  571;  Shattuck  v.  Eastman,  12  Allen 
(Mass.)  369. 

if  per  Gray,  J.,  In  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101. 
Post,  p.  347. 

is  Barlow  v.  Society,  8  Allen  (Mass.)  460. 

i»  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  10L 


§§  84-85)      PARTIES  TO   NEGOTIABLE   INSTRUMENT.  343 

applying  them  it  is  inevitable  that  similar,  or  even  identical, 
instruments  should  be  differently  construed  by  different 
courts,  and  it  is  not  possible  here  to  do  more  than  illustrate 
the  principles  to  be  applied  and  the  diversity  of  result  in 
their  application  by  a  few  examples. 

Thus,  where  a  note  read :  "Lee,  April  26,  1858.  On  de- 
mand, I,  as  treasurer  of  the  Congregational  Society,  or  my 
successors  in  office,  promise  to  pay ; "  and  was  signed  "B> 
Treasurer" — it  was  held  to  be  the  note  of  the  society.  Here 
the  principal  was  named,  and  the  promise  was  by  the  signer 
"as  treasurer  of"  the  society,  and  by  him  or  his  "successors," 
which  could  not  be  if  the  note  were  his  personal  act,  and 
the  designation  of  his  office  was  repeated  after  his  signa- 
ture.20 

So  a  note  which  read,  "We,  the  undersigned,  committee 
for  the  first  school  district,  promise  in  behalf  of  said  school 
district,"  signed  by  the  individual  members  of  the  committee, 
with  the  word  "Committee"  opposite  their  names,  was  held 
not  to  be  the  note  of  the  members.*1 

So  a  note  which  read,  "We  promise  to  pay  on  account  of" 
the  A.  Company,  signed  "B.,  C.,  D.,  Directors,"  and  counter- 
signed "E.,  Secretary,"  was  held  to  be  the  note  of  the  Com- 
pany.22 So  a  note  which  read,  "We,  as  trustees  of  the  A. 
Company,  promise,"  signed  "B.,  C.,  D.,  Trustees  of  the  A. 
Company,"  was  held  to  be  the  note  of  the  company.28  It  is 

*o  Barlow  v.  Society,  8  Allen  (Mass.)  460. 

*i  Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521.  See,  also.  Aggs 
T.  Nicholson,  1  H.  &  N.  165. 

«a  Lindus  v.  Melrose,  2  H.  &  N.  293.  But  see  Allan  v.  Miller,  22 
L.  T.  825. 

In  Frankland  v.  Johnson,  147  111.  520.  35  N.  E.  480,  37  Am.  St.  Rep. 
234,  it  was  held  that  a  note  whereby  "the  Western  Seaman's  Friend 
Society  agrees  to  pay,"  signed  "B.,  Gen.  Supt.,"  was  so  ambiguous 
that  whether  it  was  the  obligation  of  the  society  or  of  B.  was  a 
question  of  fact 

23  Blanchard  v.  Kaull,  44  Cal.  440.  But  see  Powers  v.  Briggs,  79 
111.  493,  22  Am.  Rep.  175.  Cf.  New  Market  Sav.  Bank  v.  Gillett, 
100  111.  254,  39  Am.  Rep.  39. 

In  Mann  y.  Chandler,  9  Mass.  335,  a  note  expressed  to  be  made  by 


344  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

to  be  noticed  that  in  these  cases  the  signatures  were  accom- 
panied with  the  official  designation  of  the  signers,  without 
which  the  opposite  conclusion  might  have  been  reached.24 
In  such  cases,  however,  where  the  rule  admitting  extrinsic 
evidence  in  case  of  ambiguity  prevails,  the  principal  might  be 
charged  by  proof  that  he  was  understood  by  the  parties  to  be 
the  real  principal. 

Same — Indications  on  Face  of  Paper — Headings. 

Where  the  agent  draws  a  bill  of  exchange  and  signs  it  as 
"agent,"  sufficient  indication  that  he  is  acting  as  agent  may 
appear  by  a  direction  to  charge  it  to  a  person  named  therein. 
Thus  a  draft  not  naming  the  principal  otherwise  than  by  con- 
cluding, "and  charge  the  same  to  the  A.  Company,"  signed 
"B.,  Agent,"  was  held  the  draft  of  the  company.25  And, 
although  the  principal  is  not  otherwise  named,  it  has  been 
held  that  when  the  name  of  a  company  or  corporation  is 
printed  at  the  top  or  in  the  margin  of  the  draft,  and  the 
draft  is  signed  as  "agent,"  the  principal,  as  well  as  the  fact 
that  it  is  drawn  on  his  behalf,  is  sufficiently  disclosed,  and 
the  principal  is  bound.  Thus  a  check  directing  payment  to 

"I,  the  subscriber,  treasurer  of  the  A.  Turnpike  Corporation,"  and 
signed  "B.,  Treasurer  of  A.  Turnpike  Corporation,"  was  held  the  note 
of  the  corporation.  In  Barlow  v.  Society,  8  Allen  (Mass.)  460,  it  is 
said  that  this  case  must  be  maintained,  if  at  all,  upon  the  ground 
that  the  treasurer  of  a  corporation  is  by  virtue  of  his  office  the  hand 
by  which  the  corporation  conducts  its  pecuniary  affairs,  assimilating 
his  note  to  that  of  a  cashier  of  a  bank. 

z*  Fogg  v.  Virgin,  19  Me.  352,  36  Am.  Dec.  757;  Pack  v.  White, 
78  Ky.  243;  McKensey  v.  Edwards,  88  Ky.  272,  10  S.  W.  815,  3  L.  R. 
A.  397,  21  Am.  St.  Rep.  339. 

The  mere  insertion  of  "for"  or  "on  behalf  or*  the  principal  In  the 
body  of  the  note  does  not  make  it  his  contract,  if  signed  by  the 
name  of  the  agent  without  addition.  Bradlee  v.  Manufactory,  16 
Pick.  (Mass.)  347;  Morell  v.  Codding,  4  Allen  (Mass.)  403. 

2B  Tripp  v.  Paper  Co.,  13  Pick.  (Mass.)  291. 

Otherwise  if  signed  by  the  agent  without  addition.  Mayhew  v. 
Prince,  11  Mass.  54;  Bank  of  British  North  America  v.  Hooper,  5 
Gray  (Mass.)  567,  66  Am.  Dec.  390. 


§§  &4-S5)      PARTIES  TO   NEGOTIABLE  INSTRUMENT.  345 

C.,  and  signed  "B.,  Treasurer,"  with  the  words  "JEtna  Mills" 
printed  on  the  margin,  was  held  to  bind  the  corporation, 
and  not  B.26  And  a  similar  holding  was  made  where  a  draft 
was  signed  "F.  and  C.,"  but  at  the  top  of  the  paper  was  print- 
ed "New  England  Agency  of  the  Pennsylvania  Fire  Insur- 
ance Company,"  and  in  the  margin  "F.  &  C.,  General  Agents 
for  the  New  England  States."  JT  So  where  a  draft  had  the 
words  "Office  of  the  A.  Company,  Hancock,  Michigan," 
printed  at  the  top,  and  was  signed  "B.,  Agent,"  it  was  held 
that  he  could  not  be  personally  charged.28  Such  cases  can 
hardly  be  reconciled  with  other  cases  of  notes  with  the  name 
of  a  corporation  printed  at  the  top  or  in  the  margin,  and 
signed  by  the  maker  as  "Agent,"  which  have  nevertheless 
been  held  to  be  the  personal  obligation  of  the  signer.  Thus, 
a  note  in  form,  "We  promise  to  pay,"  headed  "Midland  Coun- 
ties Building  Society,  No.  3,"  and  signed  "B.,  C.,  Trustees, 
D.,  Secretary,"  was  held  to  bind  the  signers  personally. 
"Midland  Counties  Building  Society,  No.  3,"  it  was  said, 
"may  be  the  name  of  the  place  from  which  the  note  is  dated ; 
the  promise  is  not  qualified."  "  And  where  a  note  was  in 
form,  "We  promise  to  pay,"  and  signed  "B.,  Pres't.,  C., 
Treas.,"  with  the  words  "A.  Co."  printed  across  the  end,  it 
was  held  the  personal  obligation  of  the  signers.80 

*«  Carpenter  v.  Farnsworth,  106  Mass.  561,  8  Am.  Rep.  360. 

A  bill  headed  "Office  of  the  A.  Co.,"  and  concluding  charge  same 
to  account  of  "A.  Co.,"  and  signed  "B.,  Pres't,  C.,  Sec'y.,"  is  the  bill 
of  the  company.  Hitchcock  v.  Buchanan,  105  U.  S.  416,  26  L.  Ed. 
1078.  See,  also,  Mechanics'  Bank  v.  Bank,  5  Wheat  (U.  S.](  326,  5 
L.  Ed.  100;  Fuller  v.  Hooper,  3  Gray  (Mass.)  334. 

*i  Chipman  v.  Foster,  119  Mass.  189. 

as  Slawson  v.  Loring,  5  Allen  (Mass.)  340,  343,  81  Am.  Dec.  750, 

29  Price  v.  Taylor,  5  H.  &  N.  540.  Contra,  Lacy  v.  Lumber  Co.,  43 
Iowa,  510.  A  note  was  signed  "B.,  President"  and  above  the  note  ap- 
peared the  name  of  a  corporation.  Held,  that  the  presumption  that  the 
note  was  the  individual  obligation  of  the  signer  was  not  conclusive, 
and  parol  evidence  was  admissible  to  show  that  it  was  the  note  of 
the  corporation. 

«o  Casco  Nat  Bank  v.  Clark,  139  N.  Y.  307,  34  N.  E.  908,  36  Am. 


346  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Oh.  13 

Same — Signature  l>y  Corporation. 

Where  there  is  nothing  in  the  body  of  the  Instrument  to 
indicate  on  whose  behalf  it  is  made,  but  it  bears  the  signature 
of  a  corporation,  followed  by  the  name  of  a  person  describing 
himself  as  an  officer,  it  is  generally  held  that  the  corporation, 
and  not  the  agent,  is  bound.31  Thus  where  a  note  read,  "We 
promise  to  pay,"  and  was  signed  "Warrick  Glass  Works," 
and  thereunder  appeared  the  name  of  "J.  Price  Warrick, 
Pres.,"  it  was  held  to  be  the  note  of  the  corporation.  "The 
name  of  a  corporation,  so  placed,"  said  the  court,  "raises 
the  implication  of  a  corporate  liability.  *  *  *  The  name 
of  an  officer  of  such  corporation,  to  which  name  the  official 
title  is  appended,  but  beneath  the  corporate  name,  implies 
the  relation  of  principal  and  agent.  It  means  that,  inasmuch 
as  every  corporate  act  must  be  done  by 'the  hand  of  a  natural 
person,  this  person  is  the  agent  by  whose  hand  the  corpora- 


St.  Rep.  705.  "It  was  competent  for  Its  officers,"  said  Gray,  J.,  "to 
obligate  themselves  personally  *  *  *;  and,  apparently  to  the 
world,  they  did  so  by  the  language  of  the  note,  which  the  mere  use 
of  a  blank  form  of  note  having  upon  its  margin  the  name  of  their 
company  was  insufficient  to  negative."  This  was  an  action  by  a  pur- 
chaser of  the  note,  and  it  was  conceded  that,  if  it  had  had  knowl- 
edge that  the  note  was  between  the  parties  intended  to  be  a  cor- 
porate obligation,  the  signers  could  not  be  charged;  but  it  was  held 
that  it  was  not  so  charged  by  the  manner  of  the  execution.  To  the 
same  effect,  First  Nat.  Bank  v.  Wallis,  150  N.  Y.  455,  44  N.  B.  1038, 
affirming  80  Hun,  435,  30  N.  Y.  Supp.  83.  Of.  Second  Nat  Bank  v. 
Steele  Co.,  155  Ind.  581,  58  N.  E.  833. 

«i  Reeve  v.  Bank,  54  N.  J.  Law.  208,  23  Atl.  853,  16  L.  R.  A.  143, 
33  Am.  St.  Rep.  675;  Liebscher  v.  Kraus,  74  Wis.  387,  43  N.  W.  166, 
5  L.  R.  A.  496,  17  Am.  St.  Rep.  171. 

See,  also,  Draper  v.  Heating  Co.,  5  Allen  (Mass.)  338;  Castle  v. 
Foundry  Co.,  72  Me.  167;  Bean  v.  Mining  Co.,  66  Cal.  451,  6  Pac.  86, 
56  Am.  Rep.  106  (parol  evidence  admissible). 

An  indorsement,  "Estate  of  A.,  B.,  Executor,"  does  not  bind  the 
executor  personally,  though  the  estate  may  not  be  bound.  Grafton 
Nat.  Bank  v.  Wing,  172  Mass.  513,  52  N.  E.  1067,  43  L.  R.  A.  831, 
70  Am.  St  Rep.  303. 


§§  84-85)      PARTIES  TO   NEGOTIABLE  INSTRUMENT.  347 

tion  did  the  particular  act."  "  The  use  of  the  word  "we" 
raises  no  implication  that  the  note  is  the  joint  note  of  the  cor- 
poration and  the  officer,  the  word  "we"  being  often  used  by 
corporations.  The  cases  are,  however,  conflicting.  Such  a 
note  has  been  held  the  joint  note  of  the  corporation  and  of 
the  officer.38  Where,  in  lieu  of  a  written  signature,  the  seal 
of  the  corporation  containing  its  name  is  affixed  in  the  prop- 
er place,  the  effect  is  the  same  as  if  the  name  had  been 
signed.84 

When  Agent  Bov/nd. 

When  an  agent  makes  a  negotiable  instrument  and  signs 
it  with  his  own  name,  although  with  the  addition  of  the 
word  "Agent,"  even  of  a  named  person,  he  is  nevertheless 
personally  bound  thereby,  unless  it  otherwise  appears  from 
the  instrument  that  he  acts  as  agent  and  intends  to  bind 
the  principal.  "Is  it  not  a  universal  rule,"  said  Lord  Ellen- 
borough,  "that  a  man  who  puts  his  name  to  a  bill  of  ex- 
change thereby  makes  himself  personally  liable,  unless  he 
states  upon  the  face  of  the  bill  that  he  subscribes  it  for  an- 
other, or  by  procuration  of  another,  which  are  words  of  ex- 
clusion? Unless  he  says  plainly,  'I  am  the  mere  scribe,'  he 
becomes  liable." 80  The  agent  is  therefore  bound,  when 
there  are  not  sufficient  words  of  exclusion  elsewhere  in  the 
instrument,  if  he  signs  "B.,  Agent,"  «•  "B.,  Trustee,"  "  "B., 

«  Reeve  v.  Bank,  54  N.  J.  Law,  208,  23  Ati.  853,  16  L.  R.  A.  143, 

33  Am.  St.  Rep.  675. 

as  Mathews  v.  Mattress  Co.,  87  Iowa,  246,  54  N.  W.  225,  19  L.  R. 
A.  676;  Heffner  v.  Brownell,  70  Iowa,  591,  31  N.  W.  947. 

84  Miller  v.  Roach,  150  Mass.  140,  22  N.  E.  634.  6  L.  R.  A.  71; 
Means  v.  Swormstedt,  32  Ind.  87,  2  Am.  Rep.  330;  Scanlan  v.  Keith, 
102  111.  634,  40  Am.  Rep.  624;  Guthrie  v.  Imbrie,  12  Or.  182,  6  Pac. 
664,  53  Am.  Rep.  331. 

SB  Leadbitter  v.  Farrow,  5  M.  &  S.  345. 

»«  Fentz  v.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558;  Cort- 
land  Wagon  Co.  v.  Lynch,  82  Hun,  173,  31  N.  Y.  Supp.  325;  Manu- 

3t  Trice  v.  Taylor,  5  H.  &  N.  540. 


348  LIABILITY  OF  AGENT  TO   THIRD  PERSON.  (Ch.  13 

Agent  of  A.,"88  "B.,  President  [or  Treasurer],"39  "B., 
President  [or  Treasurer,  or  Trustee,  etc.]  of  the  A.  Com- 
pany." *°  Thus,  where  a  bill  read,  "Pay  to  the  order  of 
C.,  *  *  *  and  charge  the  same  to  the  account  of  [signed] 
B.  &  Co.,  Agts.  A.  Ins.  Co.,"  and  was  addressed  to  the  "A. 
Insurance  Co.,"  it  was  held  that  B.  &  Co.  were  bound.  "A 
mere  description  of  the  general  relation  or  office  which  the 
person  signing  the  paper  holds  to  another  person  or  to  a 
corporation,"  said  the  court,  "without  indicating  that  the 
particular  signature  is  made  in  the  execution  of  the  office  and 
agency,  is  not  sufficient  to  charge  the  principal  or  to  exempt 
the  agent  from  liability."  41  This  is  subject,  of  course,  to  the 
qualification  that  in  many  jurisdictions  the  liability  of  the 
agent  so  signing  is,  except  as  against  a  purchaser  for  value 
without  notice,  only  prim  a  facie,  and  that  extrinsic  evidence 
is  admissible  to  show  that  the  intention  of  the  parties  was 
that  the  principal  should  be  so  bound.42 

facturers'  &  Traders'  Bank  v.  Love,  13  App.  Div.  561,  43  N.  T.  Supp. 
812;.  Williams  v.  Robbins,  16  Gray  (Mass.)  77,  77  Am.  Dec.  396; 
Anderton  v.  Shoup,  17  Ohio  St.  125;  Ohio  Nat.  Bank  v.  Cook,  38 
Ohio  St  442;  Stiuson  v.  Lee,  68  Miss.  113,  8  South.  272,  9  L.  R.  A. 
830,  24  Am.  St.  Rep.  257;  Sparks  v.  Transfer  Co.,  104  Mo.  531,  15  S. 
W.  417,  12  L.  R.  A.  714,  24  Am.  St.  Rep.  351  (and  cases  cited). 

«s  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101. 

«»  Hobson  v.  Hassett,  76  Cal.  203,  18  Pac.  320,  9  Am.  St.  Rep.  193. 

«o  Fiske  v.  Eldridge,  12  Gray  (Mass.)  474;  Haverill  Mut.  Fire  Ins. 
Co.  v.  Newhall,  1  Allen  (Mass.)  130;  Seaver  v.  Coburn,  10  Gush. 
(Mass.)  324;  Davis  v.  England,  141  Mass.  587,  6  N.  E.  731;  Sturdi- 
vant  v.  Hull,  59  Me.  172,  8  Am.  Rep.  409;  Rendell  v.  Harriman,  75 
Me.  497,  46  Am.  Rep.  421;  Barker  v.  Insurance  Co.,  3  Wend,  (N.  Y.) 
98,  20  Am.  Dec.  664;  Hills  v.  Bannister,  8  Cow.  (N.  Y.)  31;  Ohio 
Nat  Bank  v.  Cook,  38  Ohio  St.  442;  Tilden  v.  Barnard,  43  Mich. 
376,  5  N.  W.  420,  38  Am.  Rep.  197;  Fowler  v.  Atkinson,  6  Minn.  578 
(Gil.  412);  Burlingame  v.  Brewster,  79  111.  515,  22  Am.  Rep.  177; 
Coburn  v.  Lodge,  71  Iowa,  581,  32  N.  W.  533. 

41  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101. 

42  Ante,  p.  339. 


fc§  84-85)      PARTIES  TO   NEGOTIABLE  INSTRUMENT.  849 

Same — Acting   Without  Authority — Negotiable    Instruments 

LOAD. 

The  negotiable  instruments  law  provides  that  "where  the 
instrument  contains  or  a  person  adds  to  his  signature  words 
indicating  that  he  signs  for  or  on  behalf  of  a  principal,  or  in 
a  representative  capacity,  he  is  not  liable  on  the  instru- 
ment if  he  was  duly  authorized)'  but  the  mere  addition  of 
words  describing  him  as  an  agent,  or  as  filling  a  representa- 
tive character,  without  disclosing  his  principal,  does  not  ex- 
empt him  from  personal  liability."  **  The  effect  of  the  words 
in  italics  appears  to  be  to  render  an  agent  who  signs  in  a 
representative  capacity,  but  without  authority,  liable  on  the 
instrument;  thus  making  for  the  parties  a  contract  which 
was  not  in  contemplation,  and  changing  the  common-law 
rule  that  one  who  contracts  in  the  name  of  an  ostensible  prin- 
cipal is  not  liable  upon  the  contract,  his  only  liability  on  con- 
tract being  upon  an  implied  warranty  of  authority.44  This 
change  has  been  justly  condemned,  and  the  amendment  of 
the  section  by  striking  out  the  words  "if  he  was  duly  author- 
ized" has  been  urged.48 

Agent  as  Payee  and  Indorser. 

When  a  negotiable  instrument  is  made  or  indorsed  to  an 
agent  in  his  own  name,  with  added  words  descriptive  of  his 
relation  as  agent  of  another  person,  named  or  unnamed,  the 
same  conflict  of  authority  prevails  as  to  who  is  the  payee 
or  indorsee,  and  consequently  as  to  who  is  the  proper  per- 
son to  bring  suit  and  to  indorse.  It  is  generally  held  that 
the  agent,  although  described  as  agent  of  a  named  prin- 
cipal, may  maintain  an  action  upon  the  instrument  in  his  own 
name.48  But,  when  the  payee  is  described  as  treasurer  or 

«»  N.  Y.  Laws  1897,  c.  612,  §  39.    See  Norton,  Bills  &  N.  (3d  Ed.) 
Appendix,  442,  §  39  (20). 
4*  Post,  p.  869. 

45  Prof.  J.  B.  Ames,  16  Harv.  L.  Rev.  256. 
4«  Chadsey  v.  McCreery,  27  111.  253;  Ord  v.  McKee,  5  Cal.  515. 
Where  a  bill  is  payable  to  the  order  of  "B.,  Treasurer,"  he  may 


350  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Ch.  13 

other  officer  of  a  corporation  named,  it  is  often  held  that 
the  corporation  is  the  payee.47  When  the  instrument  is 
payable  to  a  person  as  "Agent,"  and  he  indorses  in  that 
form,  the  same  diversity  exists  as  to  who  is  bound  by  the 
indorsement.  Where  the  rule  excluding  parol  evidence  is 
strictly  maintained  there  can  be  no  recovery  against  the  prin- 
cipal upon  an  indorsement  in  the  name  of  the  agent,  though 
he  describe  himself  as  such.  Thus,  in  a  Massachusetts  case, 
where  a  bill  was  payable  to  and  indorsed  by  "B.,  Agent,"  in 
an  action  against  him  as  indorser  it  was  held  that  parol  evi- 
dence was  inadmissible  to  show  that  he  was  merely  agent, 
and  that  the  plaintiff  knew  the  fact.  "The  defendants,"  said 
Gray,  C.  J.,  "appeared  upon  the  face  of  the  bill  to  be  them- 
selves the  payees  and  indorsers,  and  the  word  'Agents'  was 
a  mere  designatio  personarum,  and  parol  evidence  was  in- 
admissible to  discharge  them."  *8  But  in  a  Minnesota  case, 
where  a  note  was  payable  to  and  indorsed  by  "B.,  Treasur- 
er," it  was  held  that  the  indorsement  was  prima  facie  his  in- 
dividual contract,  but  that  extrinsic  evidence  was  admissible 
to  show  that  he  made  it  only  in  his  official  capacity  as  treas- 
urer of  the  maker  corporation.49  It  has  also  been  held  that 
where  a  note  is  payable  to  "B.,"  by  indorsing  "B.,  Agent," 
the  indorsement  is  qualified,  and  he  relieves  himself  from  lia- 
bility as  indorser ; B0  and  the  same  holding  was  made  where 

Indorse  it  personally  or  by  attorney.  Shaw  v.  Stone,  1  Gush.  (Mass.) 
228. 

47  Nichols  v.  Frothingham,  45  Me.  220,  71  Am.  Dec.  539;   Vater  v. 
Lewis,  36  Ind.  228,  10  Am.  Rep.  29;   Falk  v.  Moebs,  127  U.  S.  597,  8 
Sup.  Ct.  1319,  32  L.  Ed.  266. 

48  Bartlett  v.  Hawley,  120  Mass.  92.    See,  also,  Towne  v.  Rice, 
122  Mass.  67  (B.,  Receiver). 

Where  a  note  was  payable  to  "B.,  Agent,"  and  indorsed,  "A.  Co., 
B.,  Agent,"  the  Indorsement  was  B.'s.  Mann  v.  Bank,  34  Kan.  746, 
10  Pac.  150. 

49  Souhegan  Nat.  Bank  v.  Boardinan,  46  Minn.  293,  48  N.  W.  1116. 
See,  also,  Babcock  v.  Beman,  11  N.  Y.  200. 

A  bill  payable  to  "B.,  Agent,"  and  so  indorsed,  binds  the  prin- 
cipal.    Merchants'  Bank  v.  Bank,  1  Ga.  418,  44  Am.  Dec.  665. 
eo  Mott  v.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550. 


§§  84-85)      PARTIES  TO   NEGOTIABLE   INSTRUMENT.  851 

a  note  was  payable  to  and  indorsed  "B.,  Treasurer." 81 
There  is,  moreover,  a  tendency  to  assimilate  indorsements 
by  the  treasurer  or  managing  officer  of  a  corporation  to  in- 
dorsements by  bank  cashiers,  to  be  considered  in  the  next 
paragraph. 

Same — Cashier  of  Bank — Officer  of  Corporation. 

To  the  rule  that  one  who  is  not  named  as  a  party  to  a 
negotiable  instrument  cannot  maintain  an  action  or  be  char- 
ged thereon  there  is  an  apparent  exception,  applicable  to 
paper  payable  to  the  cashier  of  a  bank,  which  prevails  even 
where  parol  evidence  is  in  other  cases  inadmissible  to  show 
the  intention  of  the  parties.  By  usage  the  name  of  such 
officer,  with  his  title  "Cashier,"  has  become  established  as 
the  alternative  designation  of  the  bank.  Where  paper  is  so 
made  payable  to  him,  an  action  may  be  maintained  thereon 
by  the  bank  82  or  by  the  cashier ;  ™  and,  when  indorsed  by 
him  in  the  same  form,  the  indorsement  is  the  indorsement 
of  the  bank,  which  may  be  charged  thereon.54  There  is  a 
tendency  to  apply  the  same  rule  to  jbaper  made  payable  to 
the  treasurer  or  managing  officer  of  other  corporations.86 

BI  Babcock  v.  Beman,  11  N.  Y.  200. 

»2  First  Nat.  Bank  v.  Hall,  44  N.  Y.  395,  4  Am.  Rep.  698;  Water-v 
vliet  Bank  v.  White,  1  Denio  (N.  Y.)  608;  Commercial  Bank  v. 
French,  21  Pick.  (Mass.)  486,  32  Am.  Dec.  280;  Barney  v.  Newcomb, 
9  Gush.  (Mass.)  46;  Bank  of  Manchester  v.  Slason,  13  Vt  334;  Dutch 
v.  Boyd,  81  Ind.  146;  Nave  v.  Bank,  87  Ind.  204;  Garton  v.  Bank,  34 
Mich.  279;  Baldwin  v.  Bank,  1  Wall.  (U.  S.)  234.  17  L.  Ed.  534. 

83  Fairfield  v.  Adams,  16  Pick.  (Mass.)  381;  McHenry  v.  Ridgely, 
2  Scam.  (111.)  309,  35  Am.  Dec.  110. 

B*  Bank  of  Genesee  v.  Bank,  13  N.  Y.  309;  Bank  of  New  York  v. 
Bank,  29  N.  Y.  619;  Collins  y.  Johnson,  16  Ga.  458;  Bank  of  State 
v.  Wheeler,  21  Ind.  90;  Houghton  v.  Bank,  26  Wis.  663,  7  Am.  Rep. 
107. 

OB  Chillicothe  Branch  of  State  Bank  v.  Fox,  3  Blatchf.  431,  Fed.  Gas. 
No.  2,683;  Babcock  v.  Beman,  11  N.  Y.  200;  Nichols  v.  Frothlngham, 
45  Me.  220,  71  Am.  Dec,  539;  Vater  v.  Lewis,  30  Ind.  288,  10  Am. 
Rep.  29. 

A  note  payable  to  the  "A.  Co.,"  and  indorsed  "B.,  President,"  or 


352  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

The  negotiable  instruments  law  provides :  "Where  an  instru- 
ment is  drawn  or  indorsed  payable  to  a  person  as  'cashier'  or 
other  fiscal  officer  of  a  bank  or  corporation,  it  is  deemed  to 
be  prima  facie  payable  to  the  bank  or  corporation  of  which  he 
is  such  officer ;  and  may  be  negotiated  by  either  the  indorse- 
ment of  the  bank  or  corporation,  or  the  indorsement  of  the 
officer."  •• 

Agent  as  Acceptor  of  a  SiU. 

Except  in  so  far  as  affected  by  the  rule  that  a  bill  can  be 
accepted,  except  for  honor,  only  by  the  drawee  and  by  the 
anomalous  doctrine  of  unsigned  and  oral  acceptances,  the 
same  considerations  which  determine  the  liability  of  the  prin- 
cipal or  of  the  agent  upon  a  note  or  a  bill  made  or  drawn 
by  the  agent  determine  their  liability  upon  an  acceptance 
made  by  him.  When  a  bill  is  drawn  on  an  agent  in  his 
own  name,  whether  described  with  or  without  addition  as 
"Agent,"  and  is  accepted  by  him  in  his  own  name,  he  is  lia- 
ble as  acceptor,  even  if  he  adds  to  his  signature  words  indi- 
cating that  he  signs  for  and  on  behalf  of  a  principal.57 

•Treasurer,"  or  "Secretary,"  transfers  the  title,  Chillicothe  Branch 
of  State  Bank  Y.  Fox,  supra;  Nicholas  v.  Oliver,  36  N.  H.  218;  Rus- 
sell v.  Folsom,  72  Me.  436. 

"The  usage  is  universal  for  presidents  and  cashiers  of  incorporated 
companies,  acting  as  the  executive  officers  and  agents  of  such  com- 
panies, to  make,  in  their  behalf,  indorsements  and  transfers  of  nego- 
tiable paper,  by  simply  indorsing  their  names,  with  additions  of 
their  titles  of  office.  I  cannot  donbt  that  such  indorsement  is  suffi- 
cient to  charge  the  corporation  under  whose  authority  the  indorse- 
ment is  made,  and  to  transfer  the  note  to  the  indorsee,  so  that  the 
latter  can  maintain  an  action  thereon  in  his  own  name."  Per  Hall, 
J.,  in  CMUicothe  Branch  of  State  Bank  v.  Fox,  supra. 

A  note  signed,  "A.  Co.,  B.,  Sec.  and.  Tteas.,"  and  payable  to  and 
indorsed  "B.,  Sec.  &  Treas.,"  held  to  be  the  note  and  indorsement  of 
the  A.  Co.,  and  unambiguous,  and  parol  evidence  inadmissible  to 
show  that  the  indorsement  was  that  of  B.  personally.  Falk  v.  Moebs, 
127  U.  S.  597,  8  Sup.  Ct  1319?  32  L.  Ed.  266. 

••  See  Norton,  B.  &  N.  (3d  Ed.),  appendix,  447,  §  72  (42). 

•T  Mare  v.  Charles,  5  El.  &  B.  978. 

Where  a  bill,  headed  "Office  of  A.  Co.,"  was  drawn  by  "B.,  Agent," 


§§  84-85)      PARTIES   TO   NEGOTIABLE  INSTRUMENT.  353 

Thus,  where  a  bill  was  drawn  on  B.,  who  wrote  across  it, 
"Accepted  for  the  Company,  B.,  Purser,"  he  was  personally 
liable.58  And  the  same  rule  has  been  applied  when  the  bill 
is  addressed  to  him  as  agent  of  a  named  principal,  and  is  ac- 
cepted by  him  as  such  agent."  In  jurisdictions  where  parol 
evidence  is  admitted,  it  would,  however,  be  admissible  in  such 
cases  tc  show  that  it  was  the  intention  of  the  parties  to  bind 
the  principal.60  But,  when  the  bill  is  drawn  on  the  agent  in 
his  own  name,  if  he  accepts  in  the  name  of  the  principal  nei- 
ther is  bound — not  the  principal,  because  he  was  not  named 
as  drawee,  nor  the  agent,  because  by  the  manner  of  ac- 
ceptance he  has  disclaimed  personal  responsibility."1 

Conversely,  where  a  bill  is  drawn  on  the  principal,  and 
is  accepted  by  the  agent  in  his  own  name,  the  agent  is  not 
liable.*2  It  does  not  follow,  however,  that  the  principal  may 
not  be  bound  by  such  an  acceptance.  Great  looseness  has 
prevailed  in  respect  to  the  formal  requisites  of  an  acceptance, 

and  addressed  to  "C.,  Agent,"  who  wrote  across  it,  "Accepted,  C., 
Agent,"  he  was  personally  bound.  Slawson  v.  Loring,  5  Allen  (Mass.) 
340,  81  Am.  Dec.  750. 

The  drawee  of  a  bill  drawn  by  the  "A.  Co."  was  described  as 
"B.,  Agent,"  and  accepted  as  "B.,  Agent  A.  Co."  Held,  that  he  was 
personally  bound,  and  that  In  a  suit  by  an  indorsee  parol  evidence 
was  not  admissible  to  show  intention  to  bind  the  company,  and  that 
the  plaintiff  purchased  with  knowledge  of  this  fact  Robinson  v. 
Bank,  44  Ohio  St.  441,  8  N.  E.  583,  58  Am.  Rep.  829.  See  Bowstead, 
Dig.  Ag.  art  109. 

»8  Mare  v.  Charles,  5  EL  &  B.  978. 

B»  Jones  v.  Jackson,  22  L.  T.  828;  Moss  T.  Livingston,  4  N.  T.  209. 
Contra,  Shelton  v.  Darling,  2  Conn.  435. 

«o  Laflin  &  Rand  Powder  Co.  v.  Sinsheimer,  48  Md,  411,  30  Am. 
Rep.  472. 

«i  Walker  v.  Bank,  9  N.  T.  582. 

Where  a  bill  was  drawn  on  "B.,  Purser  A.  Company,"  and  was 
accepted,  "B.,  per  proc.  A.  Company,"  B.  being  a  member  of  the 
company,  which  was  unincorporated,  he  was  personally  liable.  Nich- 
ols v.  Diamond,  9  Ex.  154. 

«2  Pothill  v.  Walker,  3  B.  &  Ad.  114.  Of.  Okell  v.  Charles,  34  L.  T. 
822. 

TIFF.P.&  A.-23 


354  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

and,  in  the  absence  of  any  statutory  requirements  to  the  con- 
trary, unsigned,  and  even  oral,  acceptances  have  been  sus- 
tained. Thus,  when  a  bill  is  addressed  to  several  persons,  and 
is  accepted  by  one,  he  being  the  duly  authorized  agent  of 
the  others,  by  writing  his  name  on  the  bill,  it  has  been  held 
that  all  are  liable  as  acceptors,  though  the  acceptance  does 
not  purport  to  be  in  the  name  of  or  on  behalf  of  all.63  And 
it  has  even  been  held,  where  a  bill  was  addressed  to  A.,  and 
accepted  by  his  wife  by  writing  across  it  her  own  name,  and 
A.,  on  presentation,  promised  to  pay  it,  that  he  was  liable 
as  acceptor,  his  promise  peing  sufficient  evidence  of  author- 
ity or  of  ratification."*  In  many  jurisdictions  to-day  it  is 
provided  by  statute  that  the  acceptance  must  be  in  writing 
and  signed  by  the  drawee,66  and  where  this  requirement  ex- 
ists the  cases  last  referred  to  would  not  be  precedents.8* 

Public  Agents. 

It  has  been  pointed  out  that  where  a  contract  is  entered 
into  on  behalf  of  the  government  by  a  public  agent,  notwith- 

«s  Jenkins  v.  Morris,  16  M.  &  W.  877. 

This  rule  was  applied  to  bills  drawn  upon  a  partnership  and  ac- 
cepted by  one  partner,  only  his  name  appearing  in  the  written  ac- 
ceptance. Mason  v.  Rumsey,  1  Camp.  384;  Wells  v.  Masterman,  2 
Esp.  731;  Beach  v.  Bank,  2  Ind.  488;  1  Ames,  Cas.  B.  &  N.  206,  n.  1. 

"It  would  have  been  enough  if  the  word  'Accepted'  had  been  writ- 
ten on  the  bill,  and  the  effect  cannot  be  altered  by  adding  'T.  Rum- 
Bey,  Sen.' "  Per  Lord  Ellenborough  in  Mason  v.  Rumsey,  supra. 

64  Lindus  v.  Bradwell,  5  C.  B.  583.    See  Bowstead,  Dig.  Ag.  art  89. 

«c  Neg.  Inst  Law,  §  220;   Norton,  B.  &  N.  (3d  Ed.)  472.    Cf.  §  224. 

ee  Heenan  v.  Nash,  8  Minn.  407  (Gil.  363),  83  Am.  Dec.  790. 

In  this  case  it  was  held  that  where  a  bill  was  addressed  to  a  firm, 
and  accepted  by  an  individual  member  In  his  own  name,  neither  the 
partnership  nor  the  member  accepting  were  bound.  The  statute  pro- 
vided that  no  person  should  be  charged  as  acceptor,  unless  his  accept- 
ance should  be  "in  writing,  signed  by  himself  or  his  lawful  agent" 

"If  a  draft  were  drawn  on  a  corporation  by  name,  and  accepted  by 
Its  duly  authorized  agent  or  officer  in  his  individual  name,  adding  his 
official  designation,  the  acceptance  would  be  deemed  that  of  the  cor- 
poration, for  only  the  drawee  can  accept  a  bill."  Per  Mitchell,  J., 
in  Souhegan  Nat.  Bank  v.  Boardman,  46  Minn.  293,  48  N.  W.  1116. 


§§  86-90)      CONTRACT  NOT  SEALED  OR  NEGOTIABLE.  355 

standing  that  the  agent  executes  it  in  his  own  name,  it  is 
the  contract  of  the  government.61  It  seems  that  the  same 
rule  is  applicable  to  negotiable  paper,  and  it  has  frequently 
been  held  that  where  an  instrument  executed  by  a  public 
agent  contains  words  which,  if  used  by  a  private  agent, 
would  be  deemed  mere  descriptio  personae,  the  principal,  and 
not  the  agent,  is  bound."  In  other  cases,  however,  the  dis- 
tinction has  been  disregarded.'* 

PARTIES  TO  CONTRACT  HOT  SEALED  OR  NEGOTIABLE. 

86.  When   an   agent    contracts   personally,   he    is   liable   upon 

the  contract.  In  inch  case,  if  the  contract  is  not 
sealed  or  negotiable,  the  principal  is  also  liable  there- 
on, provided  it  was  authorized. 

EXCEPTION  1:  EXCLUSIVE  CREDIT  TO  AGENT.  When 
the  other  party  to  the  contract  knows  that  the  person 
•with  whom  he  deals  is  agent,  and  who  the  principal 
•  is,  and  the  contract  is  on  such  terms  that  exclusive 
credit  is  given  to  the  agent,  the  agent  only  is  liable 
thereon. 

EXCEPTION  2:  FOREIGN  PRINCIPAL.  In  England  (it 
seems),  but  not  in  the  United  States,  when  an  agent 
contracts  on  behalf  of  a  foreign  principal,  he  is  pre- 
sumed to  contract  personally,  unless  a  contrary  inten- 
tion appears  from  the  terms  of  the  contract  ox  from 
the  surrounding  circumstances. 

SAME— WRITTEN    CONTRACT. 

87.  Where  the  contract  is  in  writing,  whether  the  agent  is 

deemed  to  have  contracted  merely  as  agent,  or  person- 
ally, depends  upon  the  intention  of  the  parties,  as  dis- 
closed by  the  terms  of  the  instrument  as  a  whole,  the 
construction  of  which  is  for  the  court. 

•T  Ante,  p.  836. 

« « Jones  v.  Le  Tombe,  3  Dall.  (U.  S.)  384,  1  L.  Ed.  947;  School 
Town  of  Monticello  v.  Kendall,  72  Ind.  91,  37  Am.  Rep.  139;  San- 
born  v.  Neal,  4  Minn.  126  (Gil.  83),  77  Am.  Dec.  502.  Cf.  Fowler  v. 
Atkinson,  6  Minn.  579  (Gil.  412). 

«»  Schools  of  Village  of  Cahokia  v.  Rautenberg,  88  111.  219;  Wing 
v.  Click,  56  Iowa,  473,  9  N.  W.  384,  41  Am.  Rep.  118. 


356  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Oh.  13 


SAME— PAROL  EVIDENCE. 

87a.  When  the  agent  appears  by  the  terms  of  the  writing  to 
have  contracted  personally,  parol  evidence  is  inad- 
missible to  show  that  in  fact  he  merely  contracted  as 
agent,  and  -was  not  intended  to  be  personally  liable. 
EXCEPTION:  In  some  jurisdictions,  if  the  agent  is  de- 
scribed as  such,  and  it  does  not  otherwise  clearly  ap- 
pear by  the  instrument  that  he  contracted  person- 
ally, he  is  only  prima  facie  liable,  and  may  show  by 
extrinsic  evidence  that  he  was  not  intended  to  be 
bound. 

SAME— ORAL  CONTRACT. 

88.  When  the  contract  is  not  in  writing,  whether  the  agent 

is  deemed  to  have  contracted  merely  as  agent,  or  per- 
sonally, is  a  question  depending  upon  the  intention  of 
the  parties,  as  disclosed  by  all  the  circumstances  of 
the  transaction,  and  is  for  the  jury. 

PUBLIC  AGENT. 

89.  A  public  agent  is  not  liable  upon  a  contract  entered  into 

by  him  on  behalf  of  the  government,  unless  it  clearly 
appears  that  he  pledges  his  personal  credit. 

WHEN  APPARENT  AGENT  IS  REAL  PRINCIPAL. 

90.  When  a  person  professes  to  contract  as  agent,  whether  in 

•writing  or  orally,  evidence  is  admissible  to  prove  that 
he  was  the  real  principal,  and  to  charge  him  person- 
ally. 

Written  Contract. 

As  we  have  seen,  when  a  contract  not  under  seal  or  ne- 
gotiable is  made  by  the  agent,  which  is  in  terms  his  con- 
tract, both  principal  and  agent  are  bound.  The  principal  is 
liable,  although  undisclosed;  for,  notwithstanding  that  the 
contract  is  in  writing,  parol  evidence  is  admisssible  to  charge 
him,1  and  the  agent  is  liable  because  he  has  so  contracted. 

§§  86-90.     i  Ante,  p.  233. 


§§  86-90)      CONTRACT  NOT  SEALED  OB  NEGOTIABLE.  357 

The  agent  may,  however,  contract  on  behalf  of  the  prin- 
cipal, so  as  to  bind  him  only.  Whether  a  written  contract, 
not  under  seal  or  negotiable,  is  to  be  deemed  the  personal 
contract  of  the  agent  or  the  contract  of  his  principal,  de- 
pends upon  the  intention  of  the  parties  as  disclosed  by  the 
writing.  The  technical  rules  governing  the  execution  of  con- 
tracts under  seal  do  not  apply,  and  a  somewhat  more  lib- 
eral interpretation  than  prevails  in  respect  to  negotiable  in- 
struments is  adopted.  If  the  meaning  is  clear,  it  matters 
not  how  the  contract  is  phrased,  nor  how  it  is  signed,  wheth- 
er by  the  name  of  the  agent  for  the  principal,  or  with  the 
name  of  the  principal  by  the  agent,  or  merely  in  the  name 
of  the  agent.1 

If,  indeed,  the  contract  is  signed  in  the  name  of  the  agent 
without  qualification,  and  no  sufficient  indication  of  a  con- 
trary intention  appears  upon  the  face  of  the  instrument,  he 
is  conclusively  bound ; '  but  if  a  contrary  intention  does  ap- 
pear it  will  control.4 

Thus,  when  the  writing  states  that  the  undertaking  is  "on 
account  of,"  B  or  "in  behalf  of,"  e  a  named  principal,  although 
the  signature  is  unqualified,  the  principal,  and  not  the  agent, 
is  bound.  The  mere  fact,  however,  that  the  agent  describes 

2  Spittle  v.  Lavendar,  2  B.  &  B.  452;  Southwell  v.  Bowdltch,  1  C. 
P.  D.  374;  Whitney  v.  Wyman,  101  U.  S.  392,  25  L.  Ed.  1050;  New 
England  Marine  Ins.  Co.  v.  De  Wolf,  8  Pick.  (Mass.)  56;  Simonds  v. 
Hoard,  23  Pick.  (Mass.)  120,  34  Ain.  Dec.  41;  Goodenough  v.  Thayer, 
132  Mass.  152;  Rogers  v.  March,  33  Me.  106;  Wheeler  v.  Walden,  17 
Neb.  122,  22  N.  W.  346. 

s  Kennedy  v.  Gouveia,  3  D.  &  R.  503;  Pace  v.  Walker,  L.  R.  5  Ex. 
173;  Miller  v.  Early  (Ky.)  58  S.  W.  789. 

<  City  of  Detroit  v.  Jackson,  1  Doug.  (Mich.)  106;  Fowle  v.  Kerch- 
ner,  87  N.  C.  47. 

6  Gadd  v.  Houghton,  1  Ex.  D.  357.  See,  also,  Fairlie  v.  Fenton. 
L.  R.  5  Ex.  169. 

«  Ogden  v.  Hall,  40  L.  T.  751;  Key  v.  Parnham,  6  Har.  &  J.  (Md.) 
418.  See,  also,  Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521. 

Otherwise  if  in  another  part  of  the  contract  the  agent  undertakes 
personally.  Norton  v.  Herron,  1  C.  &  P.  648  (the  said  G.  H.  doth 
hereby  agree);  Tanner  v.  Christian,  4  El.  &  B.  591. 


8J58  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

himself  as  agent,  whether  in  the  body  of  the  instrument 7 
or  in  the  signature,8  even  though  the  principal  be  named,  is 
insufficient  to  show  that  he  does  not  intend  to  contract  per- 
sonally. Even  a  contract  m  which  the  agent  contracts  "as 
agent  of  A."  has  been  held  binding  upon  him  personally,9 
though  this  case  has  been  doubted.10  "Although  an  agent  is 
duly  authorized,"  said  Shaw,  C.  J.,  "if  by  the  terms  of  his 
contract  he  binds  himself  personally,  and  engages  expressly 
in  his  own  name  to  pay  or  perform  other  obligations,  he  is 
responsible,  though  he  describes  himself  as  agent."  ll 

The  constructions  placed  by  different  courts  upon  similar 
instruments  are  frequently  irreconcilable,  and  very  slight  in- 

i  Burwell  v.  Jones,  3  B.  &  Aid.  47;  Paice  v.  Walker,  L.  R.  5  Ex. 
173;  Parker  v.  Winslow,  7  El.  &  B.  942;  Kennedy  v.  Gouveia,  3  D. 
&  R.  503;  Simonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec.  41; 
Guernsey  v.  Cook,  117  Mass.  548;  Grau  v.  McVicker,  8  Bias.  (U.  S.) 
13,  Fed.  Gas.  No.  5,708;  Matthews  v.  Jenkins,  80  Va.  463. 

s  Brown  v.  Bradlee,  156  Mass.  28,  30  N.  E.  85,  15  L.  R.  A.  509,  32 
Am.  St.  Rep.  430. 

This  was  an  action  to  recover  a  reward  which  was  offered  in  a 
writing  in  the  following  terms:  "$2,500  reward  will  be  paid  to  any 
person  furnishing  evidence  that  will  lead  to  the  arrest  and  convic- 
tion of  the  person  who  shot  X.  [Signed]  B.,  C.,  D.,  Selectmen  of 
Milton."  It  was  held  that  the  defendants  were  personally  liable. 
"Perhaps,"  said  Holmes,  J.,  "our  conclusion  is  a  little  strengthened  by 
the  consideration  that  *  *  *  the  defendants  bad  not  authority  to 
bind  the  town  for  more  than  $500.  For  although,  of  course,  an  agent 
does  not  make  a  promise  his  own  by  exceeding  his  authority,  if  it 
purports  to  bind  his  principal  only,  still,  when  the  construction  is 
doubtful,  the  fact  that  he  has  no  authority  *  *  *  is  a  reason  for 
reading  his  words  as  directed  towards  himself."  See,  also,  Knicker- 
bocker v.  Wilcox,  83  Mich.  200,  47  N.  W.  123,  21  Am.  St.  Rep.  595; 
MacDonald  v.  Bond,  195  111.  122,  62  N.  E.  881. 

»  Paice  v.  Walker,  L.  R.  5  Ex.  173.  In  this  case  the  language  was, 
"Sold  A.  B.  200  quarters  of  wheat  (as  agent  of  C.,  F.  &  Co.,  Danzig)." 

10  Gadd  v.  Houghton,  1  Ex.  D.  357. 

"As"  preceding  "agent,"  "trustee,"  and  the  like  indicates  that  the 
person  referred  to  contracts  in  his  representative  capacity.  Hayes 
v.  Crane,  48  Minn.  39,  50  N.  W.  925. 

11  Simonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec.  41. 


§§  86-90)      CONTRACT  NOT  SEALED  OB  NEGOTIABLE  359 

dications  of  an  intention  to  bind  the  principal  are  frequently 
construed  as  controlling  the  presumption  that  words  descrip- 
tive of  the  relation  are  to  be  deemed  mere  descriptio  per- 
sonae.12  Conversely,  if  the  agent  adds  to  his  signature  words 
indicating  that  he  signs  for  and  on  behalf  of  his  principal,  he 
is  not  personally  liable  unless  a  contrary  intention  is  else- 
where disclosed,18  but,  if  so  disclosed,  it  will  be  given  effect.14 
The  agent  may  also  use  such  words  as  to  bind  both  the  prin- 
cipal and  himself,  as  where  he  contracts  for  the  principal  and 
assumes  the  obligation  of  a  surety.18 

12  Cook  T.  Gray,  133  Mass.  106;  Rogers  v.  March,  33  Me.  106; 
State  v.  Commissioners,  60  Neb.  566,  83  N.  W.  733. 

The  introductory  clause  of  a  lease  read,  "This  agreement  made 
*  *  *  between  B.,  Agent  of  A.,"  and  the  signature  was  in  the 
same  form.  "It  clearly  appears,"  said  the  court,  "that  B.  was  the 
agent  of  the  lessor,  and  acted  as  such,  for  we  find  this  recital:  'That 
the  said  B.,  agent  as  aforesaid,  has  rented.  *  *  *'  There  are 
other  provisions  In  the  instrument  clearly  showing  that  B.  executed 
the  lease  as  the  agent  of  A.,  and  we  have  no  doubt  that  It  should  be 
treated  as  having  been  executed  by  him."  Avery  v.  Dougherty,  102 
Ind.  443,  2  N.  E.  123,  52  Am.  Rep.  680. 

An  agreement  between  "W.,  superintendent  of  the  K.  Mining  Com- 
pany, parties  of  the  first  part,  and  P.,  party  of  the  second  part,"  by 
which  "the  said  parties  of  the  first  part"  agree  to  deliver  at  P.'s  mill 
ore  from  the  K.  mine  to  be  milled  by  P.,  and  signed  "W.,  Supt.  K. 
Mining  Co.,"  is  the  contract  of  the  company.  "By  the  subject-matter 
of  this  contract,"  said  Gray,  J.,  "which  is  the  delivery  and  milling  of 
ore  from  the  Keets  mine;  by  the  description  of  Whitney,  both  in  the 
body  of  the  contract  and  in  the  signature,  as  superintendent  of  the 
Keets  Mining  Company;  and  by  the  use  of  the  words  'parties  of  the 
first  part,'  which  are  applicable  to  a  company  and  not  to  a  single 
Individual— the  contract  made  by  the  hand  of  Whitney  clearly  appears 
upon  its  face  to  have  been  intended  to  bind,  and  therefore  did  bind, 
the  company;  and,  upon  proof  that  Post  was  a  partner  in  the  com- 
pany, bound  him."  Post  v.  Pearson,  108  U.  S.  418,  2  Sup.  Ct  799,  27 
L.  Ed.  774. 

iSDeslands  v.  Gregory,  30  L.  J.  Q.  B.  36;  Lyon  v.  Williams,  5 
Gray  (Mass.)  557;  Sun  Fruiting  &  Publishing  Ass'n  v.  Moore,  183 
U.  S.  642,  22  Sup.  Ct.  240,  46  L.  Ed.  366. 

i*  Lennard  v.  Robinson,  5  El.  &  B.  125;  Knickerbocker  v.  Wilcox, 
83  Mich.  200,  47  N.  W.  123,  21  Am.  St.  Rep.  595. 

IB  Young  v.  Schuler,  11  Q.  B.  D.  651. 


360  LIABILITY   OF  AGENT  TO   THIRD  PERSON.  (Ch.  13 

Same — Parol  Evidence, 

The  construction  of  a  written  instrument  is  for  the  court.10 
Where  it  clearly  appears  from  the  contract  that  the  agent 
contracts  personally,  parol  evidence  is  inadmissible  to  show 
that  he  contracted  as  agent,  and  that  it  was  not  the  inten- 
tion of  the  parties  that  he  should  be  personally  bound,  for 
such  evidence  would  contradict  the  written  contract.17  In 
case  of  ambiguity,  parol  evidence  may  be  admitted.18  It 
seems  that  although  the  instrument  contains  words  describ- 
ing the  agent  as  such,  if  upon  ordinary  principles  of  con- 
struction the  words  are  to  be  taken  as  mere  descriptio  per- 
sonse,  and  there  is  no  further  indication  of  intention  to  bind 
the  principal,  parol  evidence  is  not  admissible  to  control  the 
construction.19  In  some  jurisdictions,  however,  it  has  been 
held  that  where  such  words  as  "agent,"  "trustee,"  and  the 
like  are  affixed  to  the  name  of  a  party  to  the  contract  they 
are  prima  facie  descriptive  only,  but  that  it  may  be  shown 
by  extrinsic  evidence  that  they  were  intended  and  under- 
stood by  the  parties  as  determining  the  character  in  which 
he  contracted.20 

ie  Tanner  v.  Christian,  4  El.  &  B.  591;  Southwell  r.  Bowditch,  1 
C.  P.  D.  374;  Hayes  v.  Crane,  48  Minn.  39,  50  N.  W.  925. 

"  Jones  v.  Littledale,  6  Ad.  &  E.  486;  Higgins  v.  Senior,  8  M.  &  W. 
834;  ante,  p.  233. 

When  an  invoice  is  only  evidence  of  a  contract,  and  not  the  con- 
tract, parol  evidence  is  admissible  to  show  that  a  person  whose  name 
appears  at  the  head  as  seller  is  not  in  fact  a  contracting  party. 
Holding  v.  Elliott,  5  H.  &  N.  117. 

is  McCollin  v.  Gilpin,  6  Q.  B.  D.  516.  See,  also,  Ziegler  v.  Fallen, 
28  Mo.  App.  295;  Becker  v.  Lament,  13  How.  Prac.  (N.  Y.)  23;  State 
v.  Commissioners,  60  Neb.  566,  83  N.  W.  733;  De  Reiner  v.  Brown, 
165  N.  Y.  410,  59  N.  E.  129. 

is  Jones  v.  Littledale,  6  Ad.  &  E.  486;  Higgins  v.  Senior,  8  M.  &  W. 
834.  See,  also,  Pike  v.  Quigley,  18  Q.  B.  D.  708;  Fleet  v.  Murton, 
L.  R.  7  Q.  B.  126;  Walker  v.  Christian,  21  Grat  (Va.)  291. 

The  agent  may,  however,  prove  as  an  equitable  defense  an  express 
agreement  that  he  was  not  to  be  liable,  when  by  mistake  the  written 
contract  fails  to  carry  out  such  agreement.  Wake  v.  Harrop,  1  H.  & 
C.  202. 

20  Pratt  v.  Beaupre,  13  Minn.  187  (Gil.  177);   Deering  v.  Thorn,  29 


§g  86   90)      CONTRACT  NOT  SEALED  OB  NEGOTIABLE.  361 

Although  parol  evidence  is  not  admissible  to  show  that 
the  person  who  appears  to  be  is  not  bound,  evidence  of 
custom  is  sometimes  admissible  to  show  that  the  agent, 
notwithstanding  that  he  contracted  merely  as  such,  is  also 
personally  liable.  For  this  purpose  evidence  of  custom  or 
usage  in  the  particular  business,  to  the  effect  that  an  agent 
so  contracting  is  also  personally  liable  on  the  contract,  may 
be  admitted,21  provided  the  custom  or  usage  is  not  incon- 
sistent with  the  express  terms  of  the  contract." 

Oral  Contract. 

When  the  contract  is  not  reduced  to  writing,  the  question 
whether  the  agent  contracted  merely  as  agent  or  personally 
depends  upon  the  intention  of  the  parties,  and  is  for  the 
jury.28  Where  the  principal  is  disclosed,  and  the  agent  is 
known  to  be  acting  as  such,  he  cannot  be  made  personally 
liable  unless  he  agreed  to  be  so.24  The  intention  is  to  be  as- 
certained from  all  the  circumstances  attending  the  transac- 

Minn.  120,  12  N.  W.  350;  Peterson  v.  Homan,  44  Minn.  166,  46  N. 
W.  303,  20  Am.  St  Rep.  564;  Rhone  v.  Powell,  20  Colo.  41,  36  Pac. 
899.  Cf.  Rowell  v.  Oleson,  32  Minn.  288,  20  N.  W.  227;  American 
Bonding  &  Trust  Co.  v.  Takahashi,  49  C.  C.  A.  267,  111  Fed.  125. 

Where  B.  contracts  "as  assignee  of  A.,"  the  contract  so  clearly  ex- 
presses that  he  contracts  In  his  representative  capacity  that  parol 
evidence  is  Inadmissible.— Hayes  v.  Crane,  48  Minn.  39,  50  N.  W.  925. 

21  Pike  v.  Ongley,  18  Q.  B.  D.  708;   Fleet  v.  Murton,  L.  R.  7  Q.  B. 
120;   Baermister  v.  Fenton,  1  C.  &  E.  121.     See  Bowstead,  Dig.  Ag. 
art.  111. 

22  Barrow  v.  Dyster,  13  Q.  B.  D.  635. 

*«  Owen  v.  Gooch,  2  Esp.  567;  Seaber  v.  Hawkes,  5  M.  &  P.  549; 
Long  v.  Millar,  4  C.  P.  D.  450;  Steamship  Bulgarian  Co.  v.  Trans- 
portation Co.,  135  Mass.  421;  Cobb  v.  Knapp,  71  N.  Y.  348,  27  Am. 
Rep.  51;  Hovey  v.  Pitcher,  13  Mo.  191;  Anderson  v.  Timberlake,  114 
Ala.  377,  22  South.  431,  62  Am.  St.  Rep.  105. 

2*  Owen  v.  Gooch,  2  Esp.  567;  Ex  p.  Hartop,  12  Yes.  352;  Whit- 
ney v.  Wyman,  101  U.  S.  392,  25  L.  Ed.  1050;  Meeker  v.  Claghorn, 
44  N.  Y.  352;  Foster  v.  Persch,  68  N.  Y.  400;  Covell  v.  Hart,  14 
Hun  (N.  Y.)  252;  Anderson  v.  Timberlake,  114  Ala.  377,  22  South. 
431,  62  Am.  St  Rep.  105;  Bleau  v.  Wright,  110  Mich.  183,  68  N.  W. 
115. 


362  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Ch.  13 

tion.  Thus,  if  an  agent  verbally  orders  goods,  he  is  person- 
ally liable  unless  the  seller  knows  that  he  is  contracting  mere- 
ly as  agent ; 25  but  if  he  orders  the  goods  in  his  principal's 
name  he  is  not  liable,  unless  he  gives  his  personal  credit.8* 
So,  where  a  broker  sells  goods  by  auction,  and  invoices 
them  in  his  own  name  as  seller,  it  is  a  question  for  the  jury 
whether  the  invoice  was  intended  to  be  the  contract,  and,  if 
so,  the  broker  is  personally  liable ;  but,  if  the  invoice  was  not 
so  intended,  it  is  a  question  for  the  jury  whether  it  was  in- 
tended by  the  parties  that  the  broker  contracted  personally.27 
So,  when  an  agent  buys  at  auction,  and  gives  his  own  name, 
he  is  personally  liable  unless  it  is  clearly  proved  that  he  did 
not  intend  to  bind  himself  personally,  and  that  the  auctioneer 
so  understood.28 

Principal  Undisclosed  or  IJnnamed. 

As  has  already  been  explained,  when  an  agent  makes  a 
contract  without  disclosing  that  he  is  acting  for  a  principal 
he  is  personally  liable,  although  the  other  party,  if  the  con- 
tract is  not  under  seal  or  negotiable,  may,  upon  discovering 
the  principal,  resort  to  the  principal,  or  hold  the  agent,  as 
he  may  elect.29  And  the  rule  is  the  same  when  the  name 

«»  Seaber  v.  Hawkes,  5  M.  &  P.  549. 

««  Ex  p.  Hartop,  12  Ves.  352;  Johnson  v.  Ogllby,  3  P.  Wm.  277; 
Owen  v.  Gooch,  2  Esp.  567. 

27  Jones  v.  Littledale,  6  Ad.  &  E.  486;  Holding  v.  Elliott,  5  H.  &  N. 
117. 

as  Williamson  v.  Barton,  7  H.  &  N.  899. 

«»  Simon  v.  Motives,  3  Burr.  1921;  McComb  v.  Wright,  4  Johns. 
Ch.  (N.  Y.)  656;  Royce  v.  Allen,  28  Vt.  234;  Pierce  v.  Johnson,  34 
Conn.  274;  Beymer  v.  Bonsall,  79  Pa.  298;  York  County  Bank  v. 
Stein,  24  Md.  447;  Davenport  v.  Eiley,  2  McCord  (S.  C.)  198;  Wheeler 
v.  Reed,  36  111.  82;  McClellan  v.  Parker,  27  Mo.  162;  Brigham  v. 
Herrick,  173  Mass.  460,  53  N.  E.  906;  Mitchell  y.  Beck,  88  Mich.  342, 
50  N.  W.  305;  Lull  v.  Bank,  110  Iowa,  537,  81  N.  W.  784;  Mackey 
v.  Briggs,  16  Colo.  143,  26  Pac.  131. 

Where  C.  conducted  a  business  in  the  name  of  "C.  &  Co.,"  and  In 
that  name  employed  plaintiff,  without  disclosing  the  fact  that  he  was 
agent  for  another,  he  cannot  avoid  personal  liability  on  the  ground 


§§  86-90)      CONTRACT  NOT  SEALED  OB  NEGOTIABLE.  363 

of  the  principal,  but  not  the  fact  of  the  agency,  is  undis- 
closed ; 30  although  it  is,  of  course,  possible  for  the  agent 
to  exonerate  himself  by  the  terms  of  the  contract.31  When 
the  contract  is  in  writing  the  liability  of  the  agent  thereon 
is  a  question  of  construction,  and  if  he  contracts  in  his  own 
name  he  is  necessarily  liable.82  When  the  contract  is  oral, 
however,  it  does  not  follow  from  the  mere  fact  that  the  agent 
fails  himself  to  disclose  the  agency  that  he  is  bound.  By 
failing  to  disclose  he  assumes  the  risk  of  being  bound ; " 
but  if  the  other  party  actually  knows,  although  from  some 
other  source,  that  the  agent  is  contracting  as  such,  and  he 
does  not  expressly  bind  himself,  the  principal  only  is  bound.84 
When  the  other  party  discovers  the  undisclosed  or  unnamed 
principal,  while  he  may  elect  to  resort  to  him,  he  is  not 
obliged  to  do  so.85  Entrance  upon  performance  after  such 

that  "C.  &  Co."  consisted  of  his  wife  alone,  and  that  he  acted  as  her 
agent.  Amans  v.  Campbell,  70  Minn.  493,  73  N.  W.  506,  68  Am.  St 
Rep.  547.  Ante,  p.  235. 

•o  Thomson  v.  Davenport,  9  B.  &  C.  78;  Jones  v.  Littledale,  6 
Ad.  &  E.  486;  Ye  Seng  Co.  v.  Corbitt  (D.  C.)  9  Fed.  423;  Winsor  v. 
Griggs,  5  Cush.  (Mass.)  210;  Cobb  v.  Knapp,  71/  N.  Y.  348,  27  Am. 
Rep.  51;  Argersinger  v.  Macnaughton,  114  N.  Y.  539,  21  N.  E.  1022, 
11  Am.  St  Rep.  687;  McClure  v.  Trust  Co.,  165  N.  Y.  108,  58  N.  E. 
777,  53  L.  R.  A.  153;  De  Remer  v.  Brown,  165  N.  Y.  410,  59  N.  K 
129;  Brown  v.  Ames,  59  Minn.  476,  61  N.  W.  448;  ante,  p.  236. 

»i  A  broker  sent  a  contract  note:  "Messrs.  S.:  I  have  this  da, 
sold  by  your  order  and  for  your  account,  to  my  principals.  *  * 
[Signed]  W.  A.  B.'*  Held,  in  an  action  of  goods  sold  and  delivered, 
that  he  was  not  personally  liable.  Southwell  v.  Bowditch,  1  C.  P. 
D.  374.  In  such  case,  however,  the  agent  may  be  liable  also  where 
there  Is  usage  to  that  effect  Ante,  p.  181, 

32  Ante,  p.  357. 

•  •  Baldwin  v.  Leonard,  39  Vt  260,  94  Am.  Dec.  324;  Nixon  T. 
Downey,  49  Iowa,  166. 

84  Chase  v.  Debolt,  7  111.  371;  Warren  v.  Dickson,  27  111.  115; 
Boston  &  M.  R.  v.  Whitcher,  1  Allen  (Mass.)  497;  Johnson  v.  Arm- 
strong, 83  Tex.  325,  18  S.  W.  594,  29  .Am.  St.  Rep.  648;  Sharp  v. 
Swayne,  1  .Pennewill,  210,  40  Atl.  113.  Cf.  Williamson  v.  Barton.  T 
H.  &  N.  899;  Worthington  v.  Cowles,  112  Mass.  30. 

SB  AS  to  what  constitutes  election,  ante,  p.  238. 


364  LIABILITY   OF  AGENT  TO   THIRD  PERSON.  (Ch.  13 

discovery  does  not  discharge  the  agent ; 88  nor  does  mere 
alteration  of  the  charges  upon  the  other  party's  books  from 
the  name  of  the  agent  to  that  of  the  principal,  without  no- 
tice or  attempt  to  enforce  the  claim  against  the  latter,  show 
an  election.87 

Giving  Credit  to  Agent — When  Agent  Only  Sound. 

While,  as  a  rule,  every  principal,  whether  disclosed  or  un- 
disclosed, is  bound  by  a  contract  made  on  his  behalf,  the 
parties  may  so  contract  that  only  the  agent  is  bound.  We 
have  seen  that  when  a  contract  is  made  on  behalf  of  an 
undisclosed  principal,  and  the  other  party,  after  discovery 
of  the  principal,  has  once  elected  to  hold  the  agent,  he  is 
bound  by  his  election,  and  cannot  afterwards  resort  to  the 
principal.38  And  so,  when  the  agent  enters  into  a  contract 
on  such  terms  that  he  is  personally  liable  thereon,  but  the 
other  party,  knowing  at  the  time  who  the  principal  is,  elects 
to  give  exclusive  credit  to  the  agent,  he  is  bound  by  the 
election,  and  cannot  subsequently  charge  the  principal.  "If 
at  the  time  of  the  sale  the  seller  knows,  not  only  that  the 
person  who  is  nominally  dealing  with  him  is  not  principal 
but  agent,  and  also  knows  who  the  principal  really  is,  and  not- 
withstanding all  that  knowledge  chooses  to  make  the  agent 
his  debtor,  dealing  with  him  and  him  alone,  then  *  *  * 
the  seller  cannot  afterwards,  on  the  failure  of  the  agent,  turn 
round  and  charge  the  principal,  having  once  made  his  elec- 
tion at  the  time  when  he  had  the  power  of  choosing  be- 
tween the  one  and  the  other."  8S>  The  question  of  election 
is  one  of  fact.40  The  mere  fact  that  the  other  party,  with 

««  Forney  v.  Shipp,  49  N.  C.  527;  Whiting  v.  Saunders,  23  Misc. 
Rep.  332,  51  N.  Y.  Supp.  211. 

87  Hutchinson  v.  Wheeler,  3  Allen  (Mass.)  577. 

«s  Ante,  p.  238. 

sn  Per  Lord  Teoterden  in  Thomson  v.  Davenport,  9  B.  &  0.  78, 
citing  Addison  v.  Gandesqui,  4  Taunt.  574,  and  Paterson  v.  Gandesqui, 
15  East.  62. 

40  Calder  v.  Dobell,  L.  R.  6  C.  P.  486;  Bylngton  v.  Simpson,  134 
Mass.  169,  45  Am.  Rep.  314. 


§§  86-90)      CONTRACT  NOT  SEALED  OB  NEGOTIABLE.  365 

knowledge  of  the  real  principal,  enters  into  a  contract  in 
writing  which  purports  to  be  the  personal  contract  of  the 
agent  seems  not  to  be  conclusive,41  although  the  contrary 
has  been  held.4*  On  the  other  hand,  when  a  sale  is  made 
to  one  who  is  acting  as  agent  for  the  purchaser,  who  is 
known  to  the  vendor,  and  only  the  note  or  other  personal 
obligation  of  the  agent  is  taken  in  payment  of  the  price, 
this  makes  a  prima  facie  case  that  credit  is  given  to  the  agent 
alone.48 

Foreign  Principal. 

According  to  the  rule  frequently  declared  in  England, 
when  an  agent  contracts  in  that  country  on  behalf  of  a  for- 
eign principal  he  is  presumed  to  contract  personally,  unless 
a  contrary  intention  appears  from  the  terms  of  the  contract 
or  from  the  surrounding  circumstances.44  "Where  a  for- 
eign merchant  has  authorized  English  merchants  to  act  for 
him,  I  take  it  that  the  usage  of  trade,  established  for  many 
years,  has  been  that  it  is  understood  that  the  foreign  con- 
stituent has  not  authorized  the  merchants  to  pledge  his 
credit  to  the  contract,  to  establish  privity  between  him  and 
the  home  supplier.  On  the  other  hand,  the  home  supplier, 
knowing  that  to  be  the  usage,  unless  there  is  something  in 
the  bargain  showing  the  intention  to  be  otherwise,  does  not 
trust  the  foreigner,  and  so  does  not  make  the  foreigner  re- 
sponsible to  him,  and  does  not  make  himself  responsible  to 

41  Calder  v.  Dobell,  L.  R.  6  C.  P.  486;    Byington  v.  Simpson,  134 
Mass.  169,  45  Am.  Rep.  314.    See  Moliiie  Malleable  Iron  Co.  v.  Iron 
Co.,  27  C.  C.  A.  442,  83  Fed.  66. 

42  Chandler  v.  Coe,  54  N.  H.  561. 

4«  Paige  v.  Stone,  10  Mete.  (Mass.)  160,  43  Am.  Dec.  420;  Henry 
Ames  Packing  &  Provision  Co.  v.  Tucker,  8  Mo.  App.  95;  Merrell  v. 
Witherby,  120  Ala.  418,  23  South.  994,  26  South.  974,  74  Am.  St.  Rep. 
39.  See,  also,  Coleman  v.  Bank,  53  N.  Y.  388.  Cf.  Atlas  S.  S.  Co. 
v.  Land  Co.,  42  C.  C.  A.  398,  102  Fed.  358. 

44  Elbinger  Actien-Gesellschaft  v.  Claye,  L.  R.  8  Q.  B.  313;  Dram- 
burg  v.  Pollizer,  28  L.  T.  470;  Button  v.  Bullock,  9  Q.  B.  572. 


366  LIABILITY  OP  AGENT  TO  THIRD   PERSON.  (Ch.  13 

the  foreigner." 4B  When  the  contract  is  in  writing,  how- 
ever, and  it  clearly  appears  that  the  agent  contracted  for  the 
principal  and  not  as  agent,  it  has  been  held  that  the  agent  is 
not  bound.46 

In  this  country  the  existence  of  a  usage  or  custom  so 
ingrafted  into  the  common  law  as  to  become  a  rule,  and  cre- 
ating a  presumption  in  all  cases  that  the  agent  is  exclusively 
liable,  has  been  denied.  The  question  in  each  case  is  to 
whom  credit  was  in  fact  given,  and  when  goods  are  sold  to 
a  home  agent,  or  a  contract  is  made  with  him,  the  fact  that 
he  acts  for  a  foreign  principal  is  merely  evidence  that  the 
agent,  and  not  the  principal,  is  bound,  and  must  be  consid- 
ered in  connection  with  other  facts  entering  into  the  ques- 
tion of  credit.47  When  the  contract  is  in  writing,  if  the  terms 
are  clear  and  unambiguous,  the  contract  must  be  deemed 
the  final  repository  of  the  intention  of  the  parties ;  and,  if 
it  is  in  form  a  contract  by  the  principal  only,  the  agent  must 
be  exonerated,  without  regard  to  the  fact  that  the  principal  is 
resident  in  a  foreign  country.48  Whatever  weight  the  con- 
sideration that  the  principal  is  a  resident  of  a  foreign  country 

48  Per  Blackburn,  J.,  in  Blbinger  Actlen-Gesellschaft  v.  CTaye,  L. 
R.  8  Q.  B.  313,  citing  dicta  in  Addison  v.  Gandesqui,  4  Taunt.  574, 
580;  Paterson  v.  Gandesqui,  15  East,  62;  Thomson  v.  Davenport,  9 
B.  &  C.  78,  87,  89;  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  598.  605. 

4«  Green  v.  Kopke,  18  C.  B.  549;  Gadd  v.  Houghton.  1  Ex.  D.  357; 
Ogden  v.  Hall,  40  L.  T.  (N.  S.)  751;  Glover  v.  Langford  [1892]  8 
Times  Law  R.  628. 

In  Glover  v.  Langford,  supra,  Charles,  J.,  said:  "In  point  of  law 
there  is  no  distinction  as  to  the  liability  of  an  agent  acting  in  behalf 
of  an  English  or  a  foreign  principal;  it  is  always  a  question  of 
fact" 

47  Oelricks  v.  Ford,  23  How.  (XL  S.)  49,  16  L.  Ed.  534;  Kirkpatrick 
v.  Stainer,  22  Wend.  (X.  Y.)  244;  Bray  v.  Kettell,  1  Allen  (Mass.)  80; 
Barry  v.  Page,  10  Gray  (Mass.)  398;  Kaulback  v.  Churchill,  59  N!  H. 
296;  Maury  v.  Ranger,  38  La.  Ann.  485,  58  Am.  Rep.  197.  Of. 
Rogers  v.  March,  33  Me.  106. 

4*  Bray  v.  Kettell,  1  Allen  (Mass.)  80. 


g§  86-90)      WHEN  APPARENT  AGENT  IS  REAL  PRINCIPAL.        367 

may  have,  it  seems  that  a  resident  in  another  state  stands 
upon  the  same  footing  as  a  home  principal.4* 

Public  Agent. 

The,  rule  which  prevails  in  respect  to  the  contracts,  even 
under  seal,  made  by  public  agents,  has  already  been  stated. 
A  public  officer  or  agent  is  not  liable  upon  a  contract  entered 
into  by  him  on  behalf  of  the  government,60  unless  it  clearly 
appears  that  he  pledges  his  personal  credit.51  It  has  been 
doubted,  however,  whether  the  distinction  applicable  to  pub- 
lic agents  applies  to  officers  or  agents  of  a  town  or  other 
municipal  corporation  capable  of  contracting  and  liable  to  an 
action  on  its  contracts.6* 

When  Professed  Agent  is  Heal  Principal. 

Inasmuch  as  the  real  principal,  whether  disclosed  or  un- 
disclosed, is  liable  on  a  contract  made  on  his  behalf,  it  may 
be  shown  that  a  person  who  purports  to  contract  as  agent, 
either  of  an  unnamed  '*  or  of  a  named  principal,64  was  in 

«•  Vawter  v.  Baker,  23  Ind.  63;  Barham  v.  Bell,  112  N.  C.  131,  16 
8.  E.  903. 

BO  Macbeath  T.  Haldemund,  1  T.  R.  172;  Rice  v.  Chute,  1  East, 
579;  Parks  v.  Ross,  11  How.  (U.  S.)  362,  13  L.  Ed.  730;  Brown  v. 
Austin,  1  Mass.  208,  2  Am.  Dec.  11;  Freeman  v.  Otis,  9  Mass.  272,  6 
Am.  Dec.  66;  Belknap  v.  Reinhart,  2  Wend.  (N.  Y.)  375,  20  Am.  Dec. 
621;  Walker  v.  Swartwout,  12  Johns.  (X.  Y.)  444,  7  Am.  Dec.  334; 
Tutt  v.  Hobbs,  17  Mo.  48C;  Sparta  School  Tp.  v.  Mendell,  138  Ind. 
188,  37  N.  E.  604.  And  see  cases  cited  ante,  p.  336. 

61  Clutterbuck  v.  Coffin,  3  M.  &  G.  842;  Auty  v.  Hutchlnson,  6  C. 
B.  266. 

62  Simonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec.  41;   Brown 
T.  Bradlee,  156  Mass.  28,  30  N.  E.  85,  15  L.  R.  A.  509,  32  Am.  St. 
Rep.  430;   City  of  Providence  v.  Miller,  11  R.  I.  272,  23  Am.  Rep.  453; 
Hall  v.  Cockrell,  28  Ala.  507. 

6«  Carr  v.  Jackson,  21  L.  J.  Ex.  137;  Adams  v.  Hall,  37  L.  T.  70. 
See,  also,  Patrick  v.  Bowman,  149  U.  S.  411,  13  Sup.  Ct  811,  37  L. 
Ed.  790. 

6*  Rallton  v.  Hodgson,  15  East,  67;  Isham  v.  Burgett,  157  Mass. 
54G,  32  N.  E.  907.  See,  also,  Jenkins  v.  Hutchinson,  13  Q.  B.  744. 
Contra,  Heffron  v.  Pollard,  73  Tex.  9G,  11  S.  W.  165,  15  Am.  St  Rep. 
764. 


368  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

fact  acting  on  his  own  behalf,  and  is  himself  the  real  prin- 
cipal. 


WHEN    AGENT    ACTS    -WITHOUT    AUTHORITY— IMPLIED 
WARRANTY  OF  AUTHORITY.i 

91.  When  one  person  expressly  or  impliedly  represents  that 

he  has  authority  to  act  on  behalf  of  another,  and  a 
third  person  is  induced  thereby  to  enter  into  a  con- 
tract with  the  professed  agent,  the  latter  is  deemed  to 
warrant  that  the  representation  is  true,  and  is  liable 
for  any  loss  caused  to  such  third  person  by  breach  of 
such  implied  •warranty,  even  if  he  acted  in  good  faith 
under  a  mistaken  belief  that  he  had  such  authority. 
Every  person  who  professes  to  contract  as  agent  is 
deemed  to  •warrant  that  he  is  in  fact  authorized  to 
make  the  contract.  When  any  such  representation  is 
made  fraudulently,  the  person  injured  may  sue  in  tort 
for  the  deceit. 

EXCEPTION  It  In  some  jurisdictions,  when  a  person  en- 
ters into  an  unauthorized  contract  in  the  name  of 
another,  he  is  held  to  be  personally  liable  on  the  con- 
tract. 

EXCEPTION  2:  When  a  person  who  contracts  as  agent, 
acting  in  good  faith,  either  stipulates  that  he  shall 
not  be  responsible  for  any  want  of  authority,  or  dis- 
closes all  the  facts  known  to  him  upon  •which  his  sup- 
posed authority  rests,  he  is  not  deemed  to  represent 
that  he  is  in  fact  duly  authorized. 

SAME— MEASURE  OF  DAMAGES  FOR  BREACH  OF  WAR- 
RANTY. 

92.  The  measure  of  damages  for  breach  of  warranty  of  au- 

thority is  the  loss  directly  resulting  as  a  natural  and 
probable  consequence  of  the  breach.  When  a  contract 
is  repudiated  by  the  person  on  whose  behalf  it  is  made, 
such  loss  is  prima  facie  the  amount  •which  -would  have 
been  recoverable  against  him  thereon  upon  his  refusal 
to  perform  had  the  contract  been  authorized.  If  the 

§§  91-92.    i  Following  substantially  Bowstead,  Dig.  Ag.  art  115, 
116. 


g§  91-92)      WHEN  AGENT  ACTS  WITHOUT  AUTHORITY.  369 

contract  would  not  have  been  enforceable  against  him, 
even  if  authorized,  because  the  formalities  required  by 
law  were  not  observed,  there  .can  be  no  recovery  for 
breach,  of  -warranty  of  authority. 

Unauthorized  Contract — Liability  of  Professed  Agent  — 
Warranty  of  Autfiority. 

When  a  person  without  authority  makes  a  contract  on  be- 
half of  another,  the  latter  is  not  bound  unless  he  ratifies  the 
contract.  If  the  professed  agent  contracts  in  his  own  name 
he  is,  of  course,  personally  liable  on  the  contract.  If,  how- 
ever, he  contracts  in  the  name  of  the  ostensible  principal,  the 
professed  agent  is  not  liable  on  the  contract,  because  it  does 
not  purport  to  be  his,  and  to  hold  him  liable  on  it  would  be 
"to  make  a  contract,  not  to  construe  it."  *  This  rule  is  sus- 
tained by  principle  and  authority,  though  there  are  some 
decisions  which  hold  him  liable  on  the  contract.8  The  rem- 
edy of  the  third  person  who  contracts  with  the  professed 
age.nt  in  reliance  upon  the  authority  which  he  asserts,  but 
does  not  possess,  must,  therefore,  be  sought  in  some  other 
form  of  action  than  an  action  on  the  contract. 

If  the  agent  fraudulently  represents  that  he  is  authorized 
when  he  is  not,  he  is,  upon  familiar  principles,  liable  in  an 
action  of  tort,  for  deceit ;  and  this,  whether  the  representa- 

t  Jenkins  v.  Hutchinson,  13  Q.  B.  744;  Lewis  v.  Nicholson,  18  Q. 
B.  503;  Ballon  v.  Talbot,  16  Mass.  461,  8  Am.  Dec.  146;  Bartlett  T. 
Tucker,  104  Mass.  336,  6  Am.  Rep.  240;  Noyes  v.  Loring,  55  Me.  408: 
White  v.  Madison,  26  N.  Y.  117;  Dung  v.  Parker,  52  N.  Y.  494;  Dun- 
can v.  Niles,  32  HI.  532,  83  Am.  Dec.  293;  McCurdy  v.  Rogers,  21 
Wis.  199,  91  Am.  Dec.  468;  Sheffield  v.  Ladue,  16  Minn.  388  (Gil. 
346),  10  Am.  Rep.  145;  Cole  v.  O'Brien,  34  Neb.  68,  51  N.  W.  316. 
33  Am.  St  Rep.  616;  Hall  v.  Crandall,  29  Cal.  567,  89  Am.  Dec.  64: 
Senter  v.  Monroe,  77  Cal.  347,  19  Pac.  580. 

s  Roberts  v.  Button,  14  Vt.  195;  Weare  v.  Gove,  44  N.  H.  196; 
and  see  Terwilliger  v.  Murphy,  104  Ind.  32,  3  N.  E.  404;  Solomon  v. 
Penoyar,  89  Mich.  11,  50  N.  W.  644;  Du^enbury  v.  Ellis,  3  Johns. 
Cas.  (N.  Y.)  70,  2  Am.  Dec.  144,  and  other  early  New  York  cases  to 
the  same  effect,  have  been  overruled.  White  v.  Madison,  20  N.  Y. 
117;  Simmons  v.  More,  100  N.  Y.  140,  2  N.  E.  640. 
TIFF.P.&  A.— 24 


370  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

tion  of  authority  is  express  or  is  merely  implied  from  his 
assuming  to  act  as  one  having  authority.4  So  long  as  he  is 
aware  of  his  want  of  authority,  it  is  immaterial  whether  he 
makes  the  representation  actually  intending  a  fraud  or  mere- 
ly in  reckless  disregard  whether  it  be  true  or  false.  On  the 
other  hand,  if  he  honestly  but  mistakenly  believes  that  he 
has  authority,  he  is  not  liable  in  an  action  of  deceit. 

The  effect  of  the  foregoing  doctrines  being  to  leave  a 
person  who  enters  into  a  contract  with  another  as  agent 
without  remedy  where  the  professed  agent  has  acted  under  a 
mistaken  belief  that  he  has  authority,  as  in  the  case  of  a  sup- 
posed agent  acting  under  a  forged  power  of  attorney,  which 
he  believes  to  be  genuine,  has  led  the  courts  to  resort  to  the 
fiction  of  an  implied  contract  or  warranty  of  authority.5 
"The  fact  that  the  professed  agent  honestly  thinks  that  he  has 
authority  affects  the  moral  character  of  his  act ;  but  his  moral 
innocence,  so  far  as  the  person  whom  he  has  induced  to  con- 
tract is  concerned,  in  no  way  aids  such  person  or  alleviates 
the  inconvenience  and  damage  which  he  sustains.  The  obli- 
gation which  arises  in  such  a  case  is  well  expressed  by  say- 
ing that  a  person,  professing  to  contract  as  agent  of  another, 

«  See  Pothill  v.  Walker,  3  B.  &  Ad.  114;  Randell  v.  Trimen.  18 
C.  B.  786;  Smout  v.  Ilbery,  10  M.  &  W.  1;  May  v.  Telegraph  Co., 
112  Mass.  90;  Kroeger  v.  Pitcalrn,  101  Pa.  311,  47  Am.  Rep.  718; 
Noyes  v.  Loring,  55  Me.  408;  White  v.  Madison,  26  N.  Y.  117;  Dung 
v.  Parker,  52  N.  Y.  494;  Duncan  v.  Niles.  32  111.  532. 

»  Colleii  v.  Wright,  8  El.  &  B.  647;  Richardson  v.  Williamson, 
L.  R.  6  Q.  B.  276;  Weeks  v.  Propert,  L.  R.  8  C.  P.  427;  Re  Na- 
tional Coffee  Palace  Co.,  24  Ch.  D.  367;  Stuart  v.  Haight,  9  T.  L. 
R.  488;  Oliver  v.  Bank  of  England  [1902]  1  Ch.  210  (forged  power); 
Baltzen  v.  Nicolay,  53  N.  Y.  467;  White  v.  Madison,  26  N.  Y.  117; 
Simmons  v.  More,  100  N.  Y.  140.  2  N.  E.  640;  Taylor  v.  Nostrand, 
134  N.  Y.  108,  31  N.  E.  246;  Kroeger  v.  Pitcairn,  101  Pa.  311,  47 
Am.  Rep.  718;  Lane  v.  Corr,  156  Pa.  250,  25  Atl.  830;  Patterson  v. 
Lippincott,  47  N.  J.  Law,  457,  1  Atl.  506,  54  Am.  Rep.  178;  Far- 
mers' Co-op.  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26  N.  E.  110, 
12  L.  R.  A.  346,  21  Am.  St.  Rep.  846;  Seeberger  v.  McCormick,  178 
111.  404,  53  N.  E.  340;  Skaaraas  v.  Finnegan,  31  Minn.  48,  16  N.  W. 
456;  Id.,  32  Minn.  107,  19  N.  W.  729. 


§§  91-92)      WHEN  AGENT  ACTS  WITHOUT  AUTHORITY.  371 

impliedly,  if  not  expressly,  undertakes  to  or  promises  the  per- 
son who  enters  into  such  contract,  upon  the  faith  of  the  pro- 
fessed agent  being  duly  authorized,  that  the  authority  which 
he  professes  to  have  does  in  point  of  fact  exist."8  The  im- 
plied undertaking  or  warranty  of  the  agent  extends  as  well 
to  cases  in  which  he  exceeds  his  authority  as  to  cases  in 
which  he  has  no  authority  at  all.  Nor  is  the  rule  confined 
to  the  case  of  one  person  inducing  another  to  enter  into  a 
contract;  for,  if  the  professed  agent  induces  the  other  to 
enter  into  any  transaction  which  he  would  not  have  entered 
into  but  for  the  representation  of  authority,  the  rule  ap- 
plies.7 

Same — Principal  Incapable. 

The  want  of  authority  may  arise  from  a  lack  of  legal  capac- 
ity on  the  part  of  the  principal.  In  such  case  it  seems  that 
the  assuming  agent  is  liable  upon  the  implied  warranty,* 

«  Collen  v.  Wright,  8  El.  &  B.  647. 

T  Plaintiff  having  entered  into  a  binding  contract  with  a  company 
to  accept  Its  debenture  stock  in  payment  of  a  debt,  defendant  di- 
rectors issued  stock,  which  without  their  knowledge  was  an  overis- 
sue. Held,  that  they  were  liable  on  an  implied  warranty  that  they 
had  authority  to  Issue  valid  stock.  Firbank's  Ex'rs  v.  Humphreys, 
18  Q.  B.  D.  60. 

Where  a  broker,  believing  himself  authorized  under  a  power  of 
attorney  which  proved  to  be  a  forgery,  procured  the  Bank  of  Eng- 
land to  allow  him  to  v.ausfer  consols,  to  its  loss,  a  recovery  against 
him  was  allowed.  Oliver  v.  Bank  of  England  [1902]  1  Ch.  610.  See 
16  Harv.  L.  Rev.  311. 

»  Where  directors  of  a  company  which  had  no  power  to  accept 
bills  accepted  on  its  behalf,  they  were  personally  liable  to  a  pur- 
chaser without  notice,  on  an  Implied  warranty  of  authority,  the  com- 
pany's powers  being  defined  by  private  act,  and  the  representation 
held  to  be  of  fact,  and  not  of  law.  West  London  Com.  Bank  v. 
Kitson,  13  Q.  B.  D.  360. 

In  Patterson  v.  Lippincott,  47  N.  J.  Law,  457,  1  Atl.  506,  54  Am. 
Rep.  178,  it  was  held  that  the  infancy  of  the  principal  was  not  a 
breach  of  the  warranty  of  authority,  unless  the  act  of  the  professed 
agent  was  entirely  without  the  infant's  knowledge  or  consent,  since 
the  contract,  If  authorized,  would  be  voidable,  and  not  void. 


372  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Ch.  13 

unless  the  incapacity  has  occurred  without  his  knowledge 
since  his  appointment,8  or  the  parties,  being  equally  informed 
as  to  the  facts,  act  under  a  mutual  mistake  of  law.1* 

When  Circumstances  Negative   Warranty. 

If  the  contract  is  made  on  such  terms  that  the  agent  stip- 
ulates that  he  shall  not  be  responsible  for  any  want  of  au- 
thority, no  warranty  of  authority  will  be  implied,  at  least 
in  the  absence  of  bad  faith  on  his  part.  Thus,  where  a 
broker  signed  a  charter  party  "per  telegraphic  authority," 
evidence  was  admitted  to  prove  that  when  charters  are  en- 
tered into  by  brokers  in  accordance  with  telegraphic  instruc- 
tions it  was  usual  to  sign  in  that  form,  and  that  it  was  un- 
derstood in  the  trade  as  negativing  the  implication  of  a  war- 
ranty by  the  charterer's  agent,  at  all  events,  to  a  greater 
extent  than  warranting  that  he  had  a  telegram  which,  if  cor- 
rect, authorized  such  a  charter.11  And  if  the  agent,  acting 
in  good  faith,  discloses  all  the  facts  upon  which  his  authority 
rests,  no  warranty  of  authority  can  be  implied.18  Thus, 
where  the  defendant,  after  the  death  of  her  husband,  but  be- 
fore she  was  informed  of  the  fact,  ordered  goods  from  the 
plaintiff,  who  had  previously  supplied  her  on  the  credit  of 
the  husband,  and  been  paid  for  them  by  him,  the  husband 
to  the  knowledge  of  the  plaintiff  being  resident  abroad,  it 
was  held  that  she  was  not  liable  on  an  implied  warranty, 
the  continuance  of  the  life  of  the  principal  being,  under  the 

•  "It  seems  to  me  that  an  agent  Is  liable  to  be  sued  by  a  third 
person,  If  he  assumes  to  act  on  his  principal's  behalf  after  be  had 
knowledge  of  his  principal's  incompetency  to  act.  *  *  *  In  my 
opinion,  if  a  person  who  has  been  held  out  as  agent  assumes  to  act 
on  behalf  of  a  lunatic,  •  *  *  the  pretended  agent  is  liable  to  an 
action  for  misleading  an  Innocent  person."  Per  Brett,  L.  J.,  In  Drew 
V.  Nunn,  4  Q.  B.  D.  661. 

10  Jefts  v.  York,  10  Gush.  (Mass.)  392. 

11  Lilly  v.  Smales  [1892J  1  Q.  B.  456. 

12  Smout  v.  Ilbery,  10  M.  &  W.  1;    Hall  y.  Lauderdale,  46  N.  Y. 
72;    Ware  v.  Morgan,  67  Ala.  461;    Newman  v.   Sylvester,  42  Ind. 
106;  Michael  v.  Jones,  84  Mo.  578;   Barry  v.  Pike,  21  La.  Ann.  221. 


§§  91-92)      WHEN  AGENT  ACTS  WITHOUT  AUTHORITY.  373 

circumstances,  a  fact  equally  within  the  knowledge  of  both 
contracting  parties,  and  there  having  been  no  failure  on  her 
part  to  state  any  fact  within  her  knowledge  relating  to  the 
continuance  of  the  authority.11  In  this  case  the  authority 
of  the  agent  turned  upon  a  question  of  fact,  namely,  the  con- 
tinuance of  the  authority  dependent  upon  the  life  of  the  prin- 
cipal. When  the  agent  makes  full  disclosure  of  the  facts 
constituting  his  authority,  as  where  he  shows  to  the  other 
party  the  power  of  attorney  or  letter  of  instructions  under 
which  he  acts,  the  question  of  his  authority  becomes  a  mere 
question  of  construction,  or  of  law,  and  no  warranty  of  the 
sufficiency  of  the  authority  can  be  implied.14 

Measure  of  Damages. 

The  measure  of  damages  for  a  breach  of  a  warranty  of 
authority  is  the  loss  directly  resulting  as  a  natural  and  prob- 
able consequence  of  the  breach.18  The  damages  are  to  be 
arrived  at  by  considering  the  difference  in  the  position  the 
plaintiff  would  have  been  in  had  the  authority  existed  and 
the  position  he  is  actually  in  in  consequence  of  the  contract 
or  transaction  being  unauthorized.16  When  a  contract  made 
by  the  professed  agent  is  repudiated,  the  measure  of  dam- 
is  Smout  v.  Ilbery,  10  M.  &  W.  1. 

n  Beattie  v.  Ebury,  L.  R.  7  Ch.  777,  affirmed  L.  R.  7  H.  L.  102 
(cf.  West  London  Com.  Bank  v.  Kitson,  13  Q.  B.  D.  360);  McReavy 
v.  Eshelman,  4  Wash.  St.  757,  31  Pac.  35. 

"If  the  defect  of  authority  arises  from  a  want  of  legal  capacity, 
and  if  the  parties  are  under  a  mutual  mistake  of  the  law,  and  are 
both  equally  informed  in  regard  to  the  facts,  so  that  the  lender  is 
not  misled  by  any  word  or  act  of  the  agent,  he  wpuM.  have  no  legal 
remedy  against  the  agent,  not  in  assumpsit,  for  it  is  not  his  contract, 
nor  in  tort,  for  he  is  chargeable  with  no  deceit."  Per  Shaw,  C.  J., 
in  .lefts  v.  York,  10  Cush.  (Mass.)  392.  Cf.'  Oliver  v.  Bank  of  England 
[1902]  1  Ch.  610. 

is  Simons  v.  Patchett,  7  EL  &  B.  568;  Spedding  v.  Nevill,  L.  R. 
4  C.  P.  212;  Godwin  v.  Francis,  L.  R.  5  C.  P.  295;  Skaaraas  v.  Fin- 
negan,  32  Minn.  107,  19  N.  W.  729. 

i«  Per  Lord  Esher  in  Firbank's  Ex'rs  v.  Humphreys,  18  Q.  B. 
D.  54. 


374  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Cll.  13 

ages  is  what  the  plaintiff  has  lost  by  losing  the  contract,  or 
prima  facie  the  damages  which  would  have  been  recoverable 
against  the  principal,  had  the  contract  been  authorized,  upon 
his  failure  to  perform  it.17  Other  damages,  naturally  result- 
ing from  the  breach,  may  be  recovered.18  Thus,  when  the 
plaintiff  has  incurred  expense  in  prosecuting  an  action  against 
the  principal  upon  the  contract,  in  which  he  has  been  de- 
feated on  the  ground  that  the  contract  was  unauthorized, 
he  may  also  recover  the  costs  of  such  action,  at  least  if  the 
agent  has  persisted  in  asserting  his  authority  and  the  costs 
were  justified.19  It  follows  that  if  the  contract  as  made  could 
not  have  been  enforced  against  the  principal,  even  if  author- 
ized, because  of  failure  to  observe  formalities  required  by  law, 
as  in  the  case  of  a  contract  in  which  the  requirements  of  the 
statute  of  frauds  are  not  satisfied,  there  can  be  no  recovery 
against  the  agent." 

When  No  Principal  in  Existence. 

It  would  seem  that  the  same  principles  should  govern 
where  a  person  professes  to  contract  in  the  name  of  an  al- 
leged principal,  but  no  such  principal  is  in  existence.  In 
such  case,  however,  it  has  been  declared  that  the  professed 
agent  is  liable  upon  the  contract.  Thus,  where  a  contract 

IT  Re  National  Coffee  Palace  Co..  24  Ch.  D.  367;  Meek  v.  Wend. 
21  Q.  B.  D.  126;  Simmons  v.  More,  100  N.  Y.  14O,  2  N.  E.  640;  See- 
berger  v.  McConnick,  178  m.  404,  53  N.  E.  340;  Skaaraas  v.  Finne- 
gan.  31  Minn.  48,  16  N.  W.  456. 

is  Farmers'  Co-op.  Trust  Co.  v.  Floyd.  47  Ohio  St  525,  26  N.  E. 
110,  12  L.  R.  A.  346,  21  Am.  St  Rep.  846;  Skaaraas  v.  Finnegan,  32 
Minn.  107,  19  N.  W.  729. 

»•  Collen  v.  Wright,  8  E.  &  B.  647;  Randell  v.  Trimen,  18  C.  B. 
786;  Godwin  T.  Francis,  L.  R.  5  a  P.  295;  White  v.  Madison,  26 
N.  Y.  117. 

»o  Baltzen  v.  Nicolay,  53  N.  Y.  467;   Dung  v.  Parker,  52  N.  Y.  496. 

Where  A.  verbally  contracted,  without  authority,  to  sell  real  estate 
to  B.,  it  was  held  that  the  latter  had  no  remedy  in  equity  against 
A.  for  breach  of  the  warranty  of  authority  on  the  ground  of  part 
performance.  Warr  T.  Jones,  24  W.  R.  695;  Bowstead,  Dig.  Ag. 
art  116. 


§§  91-92)      WHEN  AGENT  ACTS  WITHOUT  AUTHORITY.  375 

was  entered  into  by  the  promoters  of  a  proposed  corpora- 
tion on  its  behalf,  in  which  case,  as  we  have  seen,  there  can 
be  no  ratification,  since  to  admit  of  ratification  the  contract 
must  be  made  on  behalf  of  some  person  in  existence,  it  was 
held  that  the  professed  agents  were  bound.  -"Where  a  contract 
is  signed,"  said  Earle,  C.  J.,  "by  one  who  professes  to  be  sign- 
ing 'as  agent,'  but  who  has  no  principal  existing  at  the  time, 
and  the  contract  would  be  altogether  inoperative  unless  bind- 
ing upon  the  person  who  signed  it,  he  is  bound  thereby ;  and 
a  stranger  cannot  by  a  subsequent  ratification  relieve  him  from 
that  responsibility."  "  The  statement  as  to  the  liability  of 
a  professed  agent  when  no  principal  exists  was  hardly  neces- 
sary to  the  decision,  for  the  contract,  which  in  terms  de- 
scribed the  corporation  as  "proposed,"  was  construed  as  one 
in  which  the  parties  contemplated  that  the  persons  signing 
should  be  personally  liable.  And  the  existence  of  any  rule 
which,  by  reason  of  there  not  being  at  the  time  any  principal 
in  existence  who  can  be  bound,  can  convert  the  position  of 
a  person  signing  the  name  of  an  alleged  principal,  without 
using  language  indicating  an  intention  to  be  bound  person- 
ally, into  the  position  of  a  contracting  party,  has  been  doubt- 
ed.22 There  is,  however,  some  authority  for  holding  person- 
ally liable  upon  this  ground  a  person  who  contracts  pro- 
fessedly on  behalf  of  a  voluntary  association,23  which,  being 
neither  a  corporation  nor  a  partnership,  is  not  a  legal  entity.14 
It  is  conceded  that  the  rule,  if  it  exists,  does  not  apply 
where  an  agent  contracts  on  behalf  of  a  principal  who  with- 
out his  knowledge  has  died  since  the  authority  was  con- 
si  Kelner  T.  Baxter,  L.  R.  2  C.  P.  174. 

«  Hollman  v.  Pullin,  1  Cababe  &  E.  254.    See.  also.  Jones  v.  Hope, 
3  T.  L.  B.  247;  Bartlett  v.  Tucker,  101  Mass.  336.  6  Am.  Rep.  240. 

"  Lewis  v.  Tiltoii,  64  Iowa,  220,  19  N.  W.  911,  52  Am.  Rep.  436; 
Reding  v.  Anderson,  72  Iowa,  498,  34  N.  W.  300;  Comfort  v.  Gra- 
ham, 87  Iowa,  295,  54  N.  W.  242.  See,  also,  Learn  v.  Upstill,  52 
Neb.  271,  72  N.  W.  213;  Codding  v.  Munson,  52  Neb.  680,  72  N.  W. 
84G,  66  Am.  St.  Rep.  524. 
*4  Ante,  p. 


376  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Ch.  13 

ferred.  In  such  case,  if  the  agent  was  aware  of  the  fact  of 
his  principal's  death,  it  seems  that  he  would  be  liable  in  deceit 
or  upon  an  implied  warranty  of  authority." 

LIABILITY  ON  QUASI  CONTRACT— MONEY  RECEIVED  IN 
GOOD  FAITH. 

93.  Where  money  I*  paid  by  a  third  person  to  an  agent  for 

the  use  of  his  principal,  nnder  a  mistake  of  fact,  the 
agent  is  liable  to  repay  the  same;  provided  that  the 
money  is  reclaimed  before  he  has  paid  it  over,  or 
dealt  to  his  detriment  with  his  principal  on  the  faith 
of  the  payment. 

SAME— MONET    OBTAINED    WRONGFULLY. 

94.  When  money  is  obtained  by  an  agent  from  a  third  per- 

son by  extortion  or  fraud,  or  otherwise  -wrongfully, 
he  is  liable  to  repay  the  same,  although  before  it  is 
reclaimed  he  has  paid  it  over  to  his  principal. 

Money  Received  in  Good  faith. 

While  an  agent  who  contracts  as  such  for  a  disclosed  prin- 
cipal is  not  as  a  rule  liable  personally  upon  the  contract,  he 
may  be  liable  to  repay  money  which  has  been  paid  to  him  as 
agent  by  a  third  person,  in  an  action  for  money  had  and  re- 
ceived to  the  plaintiff's  use.  Although  the  agent  has  acted 
in  good  faith,  as  where  the  money  has  been  paid  to  him 
under  a  mistake  of  fact,  he  is  nevertheless  liable  to  repay  it, 
provided  the  party  who  made  the  payment  reclaims  it  before 
he  has  paid  it  over  or  otherwise  dealt  to  his  detriment  with 
his  principal  on  the  faith  of  the  payment ;  *  but,  if  he  has  in 

«  Smout  v.  Ilbery,  10  M.  &  W.  1;  Carriger  v.  Whittlngton,  26  Mo. 
811,  72  Am.  Dec.  212. 

§§  93-94.  i  Duller  v.  Harrison,  Cowp.  505;  Cox  r.  Prentice.  3  M. 
&  S.  344;  La  Farge  v.  Kneeland.  7  Cow.  (N.  Y.)  456:  Mowatt  v. 
McLelan,  1  Wend.  (N.  Y.)  173;  O'Connor  v.  Clopton,  60  Miss.  349; 
Smith  v.  Binder,  75  111.  492;  Granger  v.  Hathaway,  17  Mich.  500; 
Shepard  v.  Sherin,  43  Minn.  382,  45  N.  W.  718. 

Where  one  entitled,  to  elect  whether  he  will  hold  an  ageat  or  a 


§§  93-94)  LIABILITY   ON  QUASI   CONTRACT.  377 

the  meantime  paid  it  over  or  so  dealt  with  his  principal,  he 
is  not  liable.2  "An  agent,"  said  Lord  Ellenborough,  "who 
receives  money  for  his  principal  is  liable  as  a  principal  so 
long  as  he  stands  in  his  original  situation,  and  until  there 
has  been  a  change  of  circumstances  by  his  having  paid  over 
the  money  to  his  principal,  or  done  something  equivalent  to 
it."  8  Payment  to  another,  on  behalf  of  the  principal  on 
faith  of  the  credit,  is  equivalent  to  payment  to  the  princi- 
pal;4 but  merely  crediting  him  with  the  amount  is  not.5 
Notice  need  not  be  formal,  but  must  be  such  as  to  apprise  the 
agent  of  the  facts  and  of  the  intention  of  the  other  party  by 
reason  thereof  to  reclaim  the  money.6  If  the  agent  did  not 
disclose  his  agency,  and  the  other  party  dealt  with  him  as 
principal,  payment  over  to  the  real  principal  will  be  no  de- 
fense.7 

Such  cases  are  to  be  distinguished  from  those  in  which 
the  agent  receives  money  as  a  stakeholder,  as  where  an  auc- 
tioneer receives  a  deposit,  in  which  case  he  is  liable  to  re- 
fund on  default  of  the  vendor,  it  being  his  duty  to  hold  as 
stakeholder  until  the  completion  or  rescission  of  the  con- 
tract.8 

It  has  been  held  that,  when  money  is  paid  to  an  agent  for 

principal  who  holds  money  which  he  Is  ex  sequo  et  bono  entitled  to 
receive  makes  such  election,  he  renounces  all  remedies  against  the 
other  party.  Eufaula  Grocery  Co.  v.  Bank,  118  Ala.  408,  24  South. 
389. 

See  Bowstead,  Dig.  Ag.  art  117. 

2  Holland  v.  Russell,  4  B.  &  S.  14;  United  States  v.  Pinover  (D. 
C.)  3  Fed.  305;  Cabot  v.  Shaw,  148  Mass.  459,  20  N.  B.  99. 

»  Cox  v.  Prentice,  3  M.  &  S.  344. 

4  Cabot  v.  Shaw,  148  Mass.  459,  20  N.  E.  99. 

B  Buller  v.  Harrison,  Cowp.  565;    Cox  v.  Prentice,  3  M.  &  S.  344. 

«  Shepard  T.  Sherin,  43  Minn.  382,  45  N.  W.  718. 

i  Newall  v.  Tomlinson,  L.  R.  6  C.  P.  405;  Smith  v.  Kelly,  43  Mich. 
390,  5  N.  W.  437.  See,  also,  United  States  v.  Pinover  (D.  C.)  3  Fed. 
305,  309. 

s  Burrough  v.  Skinner,  5  Burr.  2639;  Edwards  v.  Hodding,  1 
Marsh.  377;  Gray  v.  Gutterldge,  8  O.  &  P.  40. 


378  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Ch.  13 

a  consideration  which  fails,  an  action  for  its  recovery  must 
be  against  the  principal.8 

Money  Obtained   Wrongfully. 

If  the  agent  has  obtained  the  money  wrongfully,  he  is  lia- 
ble to  repay  it  in  any  event,  although  he  has  paid  it  over  to 
his  principal  or  otherwise  dealt  with  him  to  his  detriment 
on  the  faith  of  the  payment  without  notice  or  demand  from 
the  other  party.  Thus,  he  is  so  liable  if  he  obtains  the  money 
by  extortion  or  illegal  exaction,10  or  by  fraud,11  or  under 
other  circumstances  which  to  his  knowledge  make  it  illegal 
for  him  to  receive  it.12  Of  course,  if  the  wrong  was  that 
of  the  principal,  and  was  not  participated  in  or  known  by 
the  agent,  payment  to  the  principal  is  a  defense.18 

MONEY    RECEIVED    FROM    PRINCIPAL,    FOR    THIRD 
PERSON. 

95.  When  an  agent  is  authorized  to  pay  to  a  third  person 
money  in  his  hands,  and  expressly  or  impliedly  prom- 
ises such  person  to  pay  him,  the  agent  is  personally 
liable  to  such  person  for  the  amount  so  received. 

An  agent  who  is  instructed  by  his  principal  to  pay  money 
in  his  hands  to  a  third  person  does  not  come  thereby  under 

•  Ellis  v.  Goulton  [1893]  1  Q.  B.  350;  Bleau  v.  Wright,  110  Mich. 
183,  68  N.  W.  115. 

10  Snowdon  v.  Davis,  1  Taunt.  359  (payment  tinder  terror  of  illegal 
distress);    Smith  v.  Sleap,  12  M.  &  W.  585  (withholding  documents 
to  obtain  more  money  than  is  due);    Elliott  v.  Swartwout,   10  Pot. 
(TJ.  S.)  137,  9  L.  Ed.  373;    United  States  v.  Pinover  (D:  C.)  3  Fed. 
305.  309;    Ripley  v.  Gelston,  9  Johns.  (N.  Y.)  201,  6  Am.  Dec.  271; 
Frye  v.  Lockwood,  4  Cow.  (N.  Y.)  454. 

11  Moore  v.  Shields,  121  Ind.  267,  23  N.  E.  89;    Hardy  v.  Express 
Co.  (Mass.)  65  N.  E.  375. 

12  Ex  parte  Edwards,   13  Q.    B.   D.   747   (receiving   money   from 
debtor  with  notice  of  act  of  bankruptcy);    Sharland  v.   Mildon,  5 
Hare,  469;   Larkin  v.  Hapgood,  56  Vt.  597  (money  paid  in  fraud  of 
insolvent  law). 

is  Owen  v.  Cronk  [1895]  1  Q.  B.  265. 


§§  96-97)  LIABILITY  FOR  TORTS.  379 

any  obligation  to  the  person  in  whose  favor  the  payment 
is  directed.  The  authority  may  be  revoked  by  the  principal 
until  it  is  executed  or  the  agent  has  come  under  some  bind- 
ing engagement  with  the  third  person.1  But,  if  the  agent 
promises  to  pay  the  third  person,  the  authority  is  no  longer 
revocable,2  and  he  becomes  liable  to  him  for  the  amount. 
In  such  case  the  money  is  deemed  to  be  appropriated  to  the 
use  of  the  promisee,  who  may  maintain  an  action  for  money 
had  and  received  to  his  use.* 

INABILITY  FOR   TORTS. 

96.  Where  loss  or  injury  in  caused  to  a  third  person  by  the 

wrongful  act  or  omission  of  an  agent  while  acting  on 
behalf  of  his  principal,  the  agent  is  personally  liable 
therefor,  •whether  he  is  acting  -with  the  authority  of 
the  principal  or  not,  to  the  same  extent  as  if  he  were 
acting  on  bis  own  behalf .1 

SAME-NONFEASANCE. 

97.  An  agent  is  not  liable  to  a  third  person  merely  by  rea- 

son of  failure  to  perform  a  duty  which  he  owes  to 
his  principal;  but,  if  he  enters  upon  the  performance 
of  any  act,  he  is  liable  to  a  third  person  for  any  injury 
resulting  from  his  failure  to  exercise  such  reasonable 
care  in  the  manner  of  its  performance  as  he  owes  to 
•nch  person. 

§  95.  i  Williams  v.  Everett,  14  East,  582;  Baron  v.  Husband,  4 
B.  &  Ad.  611;  Malcolm  v.  Scott,  5  Ex.  601. 

2  Ante,  p.  163. 

»  Crowfoot  v.  Gurney,  9  Bing.  372;  Robertson  v.  Fauntleroy,  8 
Moore,  10;  Walker  v.  Hostron,  9  M.  &  W.  411;  Goodwin  v.  Bowden, 
54  Me.  424;  Wyman  v.  Smith,  2  Sandf.  (N.  Y.)  331. 

Where  a  bill  drawn  on  an  agent  is  payable  out  of  a  particular 
fund,  and  he  promises  the  holder  to  pay  when  he  receives  money 
from  his  principal,  he  is  liable  to  the  holder  if  he  subsequently  re- 
ceives the  money.  Stevens  v.  Hill,  5  Esp.  247. 

{§  9C-07.    i  Substantially  as  in  Bowstead,  Dig.  Ag.  art  124. 


380  LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Oil.  13 

In  General — Misfeasance. 

An  agent  is  personally  liable  for  his  wrongful  acts;  nor 
does  the  fact  that  he  commits  an  act  under  direction  of  his 
principal,  who  is  also  liable,  relieve  him.2  "For  the  warrant 
of  no  man,  not  even  of  the  king  himself,  can  excuse  the  doing 
of  an  illegal  act;  for,  although  the  commanders  are  tres- 
passers, so  also  are  the  persons  who  did  the  fact."  *  It  is 
immaterial  that  the  agent  acted  in  the  bona  fide  belief  that 
the  principal  had  a  right  to  do  the  act. 

Accordingly  an  agent  is  liable  if  he  converts  the  goods 
of  a  third  person  to  his  principal's  use.4  It  is  no  defense 
that  he  acted  in  good  faith  and  in  the  belief  that  the  prin- 
cipal was  the  owner.8  The  various  cases  in  which  an  inno- 

«  Bennett  v.  Bayes,  5  H.  &  N.  391  (illegal  distress);  Stevens  v. 
Midland  Counties  Ry.,  10  Ex.  352  {malicious  prosecution);  Bennett 
v.  Ives,  30  Conn.  329;  Johnson  v.  Barbel1,  5  Oilman,  425,  50  Am. 
Dec.  416;  Burnap  v.  Marsh,  13  111.  535  (malicious  prosecution);  Blue 
Y.  Briggs,  12  Ind.  App.  105,  39  N.  E.  885;  Josselyn  v.  McAllister,  22 
Mich.  300  (false  imprisonment);  Wright  v.  Eaton,  7  Wis.  595;  City 
of  Duluth  v.  Mallett,  43  Minn.  205,  45  N.  W.  154. 

«  Sands  v.  Child,  3  Lev.  351,  352. 

«  Perkins  v.  Smith,  1  Wils.  328;  Cranch  v.  White,  1  Bing.  N.  C. 
414;  McPheters  v.  Page,  83  Me.  234,  22  Atl.  101,  23  Am.  St  Rep.  772. 

s  Stevens  v.  Elwell,  4  M.  &  S.  259;  Hollins  v.  Fowler,  L.  R.  7  Q. 
B.  616,  affirmed  L.  R.  7  H.  L.  757;  Cochrane  v.  Rymill,  4  L.  T.  (N. 
S.)  744  (auctioneer);  Coles  v.  Clark,  3  Gush.  (Mass.)  399;  Robinson 
v.  Bird,  158  Mass.  357,  33  N.  E.  391,  35  Am.  St.  Rep.  495  (auctioneer); 
Everett  v.  Coffin,  6  Wend.  (N.  Y.)  603,  22  Am.  Dec.  551;  Hoffman 
v.  Carow,  22  Wend.  (N.  Y.)  285;  Spraights  v.  Hawley,  39  N.  Y. 
441,  100  Am.  Dec.  452;  Kearney  v.  Glutton,  101  Mich.  106,  59  N. 
W.  419,  45  Am.  St.  Rep.  394;  Warder,  Bushnell  &  Glessner  Co.  v. 
Harris,  81  Iowa,  153,  46  N.  W.  859;  Stevens  v.  Lovejoy  (Gal.)  27 
Pac.  33. 

But  see  Leuthold  v.  Fairchild,  35  Minn.  99,  27  N.  W.  503,  28  N. 
W.  218;  Roach  v.  Turk.  9  Heisk.  (Term.)  708,  24  Am.  Rep.  360; 
Abernathy  v.  Wheeler,  92  Ky.  320,  17  S.  W.  858,  36  Am.  St.  Rep.  593. 

It  has  even  been  held  that  an  innocent  agent  is  liable  although  the 
property  sold  was  government  bonds  payable  to  bearer.  Kimball  v. 
Billings,  55  Me.  147,  92  Am.  Dec.  581. 

But  see  Spooner  v.  Holmes,  102  Mass.  503,  3  Am.  Rep.  491. 


§§  96-97)  LIABILITY   FOE  TOKT8.  381 

cent  agent  may  be  liable  for  conversion  have  been  formulated 
by  a  recent  English  writer  as  follows :  •  -An  agent  who  has 
control  or  possession  of  goods,  even  if  he  obtained  the  pos- 
session from  the  apparent  owner  and  acted  in  good  faith 
on  his  authority,  is  guilty  of  a  conversion  if  he  sells  and  de- 
livers or  otherwise  assumes  to  transfer  the  possession  and 
property  in  the  goods  without  the  authority  of  the  true  own- 
er;7 or  refuses,  without  qualification,  to  deliver  the  goods 
to  the  true  owner  on  demand ; 8  or  transfers  the  possession 
to  his  principal  or  any  other  person  except  the  true  owner, 
with  notice  of  the  claim  of  the  true  owner ; '  but  an  agent 
is  not  guilty  of  conversion  who  in  good  faith  merely  con- 
tracts on  behalf  of  his  principal  to  sell  goods  of  which  he 
has  not  possession  or  control ; 10  or  by  the  authority  of  the 
apparent  owner,  and  without  notice  of  the  claim  of  the  true 
owner,  deals  with  the  possession  without  assuming  to  deal 
with  the  property  in  the  goods.11 

"All  persons  directly  concerned  in  the  commission  of  a 
fraud  are  to  be  treated  as  principals.  No  party  can  be  per- 
mitted to  excuse  himself  on  the  ground  that  he  acted  as  the 
agent  or  servant  of  another."  1S  If  an  agent  makes  a  false 

•  Bowstead,  Dig.  Ag.  art.  125  (substantially). 

T  Barker  v.  Furlong  [1881]  2  Cb.  172;  Consolidated  Co.  y.  Curtis 
[1892]  1  Q.  B.  495.  And  see  cases  cited  supra,  p.  880,  note  5. 

s  Alexander  v.  Southey,  5  B.  &  Aid.  247;  Lee  v.  Bayes,  18  C.  B. 
699;  Singer  Mfg.  Co.  y.  King,  14  R.  I.  511. 

•  Davis  v.  Artingstall,  49  L.  J.  Ch.  609. 

10  Consolidated  Co.  v.  Curtis  [1892]  1  Q.  B.  495,  498. 

«  National  Merc.  Bank  v.  Eymill,  44  L.  T.  (X.  S.)  767;  Gurley  v. 
Armstead,  148  Mass.  267,  19  N.  E.  389,  2  L.  R.  A.  80,  12  Am.  St. 
Rep.  555.  In  this  last  case  the  court  said:  "Whoever  receives  goods 
from  one  in  actual,  though  illegal,  possession  thereof,  and  who  re- 
stores the  goods  to  such  person,  is  not  liable  for  a  conversion  by 
reason  of  having  transported  them.  *  *  *  And  this  is  so,  ap- 
parently, even  if  the  goods  thus  received  were  restored  to  the  wrong- 
ful possessor  after  notice  of  the  claim  of  the  true  owner.  Loring 
v.  Mulcahy,  3  Allen  (Mass.)  575;  Metcalf  v.  McLaughlin,  122  Mass. 
84." 

i*  Cullen  v.  Thompson's  Trustees,  4  Macq.  424,  432.  See,  also, 
Bulkeley  v.  Dunbar,  1  Aust.  37. 


LIABILITY  OF  AGENT  TO  THIRD  PERSON.  (Oh.  13 

representation  because  his  principal  directed  him  to  do  so,  and 
in  consequence,  believing  it  to  be  true,  the  necessary  mental 
element  is,  of  course,  lacking,  and  the  agent  is  not  liable,13 
although  the  principal,  if  he  knew  the  representation  to  be 
false,  would  be.14  If,  however,  the  agent  makes  a  representa- 
tion knowing  it  to  be  false,  or  in  reckless  disregard  whether 
it  be  true  or  false,  he  is  liable.16  So,  where  an  agent  assists 
in  the  commission  of  a  breach  of  trust,  he  is  personally  lia- 
ble.18 An  agent  is  liable  in  an  action  of  deceit  for  a  fraudulent 
representation  of  authority.1* 

Nonfeasance. 

It  is  commonly  said  that  an  agent  is  responsible  to  third 
persons  for  misfeasance  only,  and  not  for  nonfeasance.  It 
is  obvious  that  an  agent  incurs  no  liability  to  third  persons 
merely  because  of  his  failure  to  perform  a  duty  which  he 
owes  to  his  principal.  "His  liability  *  *  *  is  solely  to 
his  principal,  there  being  no  privity  between  him  and  such 
third  persons."  18  "A  servant  or  deputy,  quatenus  such,  can- 
not be  charged  for  neglect,  but  the  principal  only  shall  be 
charged  for  it ;  but  for  a  misfeasance  an  action  will  lie  against 
a  servant  or  deputy,  but  not  quatenus  a  deputy  or  servant, 
but  as  a  wrongdoer."  18  A  person  may  become  a  wrong- 
doer, however,  by  wrongful  neglect  as  well  as  by  wrongful 
act — that  is,  by  omitting  to  perform  a  duty  which  he  owes 
to  a  third  person — and  in  such  case,  non  constat  he  is  a  depu- 
ty, an  action  lies  against  him  for  his  wrongful  neglect  or 
default,  not  quatenus  a  deputy,  but  as  a  wrongdoer.  Thus, 

is  Jaggard,  Torts,  286.  1*  Ante,  p.  295. 

is  Swift  v.  Jewsbury,  L.  R.  9  Q.  B.  301;  Hedden  v.  Griffin,  136 
Mass.  229,  49  Am.  Rep.  25;  Weber  v.  Weber,  47  Mich.  569,  11  N. 
W.  389;  Clark  v.  Levering,  37  Minn.  120,  33  N.  W.  776;  Hedin  v. 
Institution,  62  Minn.  146,  64  N.  W.  158,  35  L.  R.  A.  417,  54  Am.  St 
Rep.  628.  See,  also,  Arnot  v.  Biscoe,  1  Ves.  95;  Salmon  v.  Richard- 
son, 30  Conn.  360,  79  Am.  Dec.  255;  Reed  v.  Peterson,  91  I1L  288. 

i«  A.  G.  v.  Corporation  of  Leicester,  7  Beav.  176. 

IT  Ante,  p.  368,  18  Story,  Ag.  §  308. 

i»  Per  Holt  C.  J.,  in  Lane  v.  Cotton,  12  Mod.  472. 


§§  96-97)  LIABILITY   FOR  TORTS.  383 

an  agent  is  not  liable  to  a  third  person  because  he  faib  to 
carry  out  his  contract  with  his  principal,  and  the  latter  is 
the  only  person  who  can  maintain  an  action  against  him 
for  that  nonfeasance ;  *°  but  if  he  enters  upon  performance, 
and  in  doing  some  act  fails  to  exercise  such  reasonable  care 
as  the  nature  of  the  act  demands,  to  the  injury  of  a  third 
person,  he  is  liable  therefor.21  For  example,  where  an  agent 
employed  to  manage  a  tenement  directed  the  city  water  to  be 
let  on,  but  failed  to  see  that  the  pipes  had  been  left  in  proper 
condition,  and  in  consequence  of  a  faucet  being  open  and  the 
sink  clogged  water  overflowed  to  the  injury  of  a  tenant  be- 
low, it  was  held  that  the  agent  was  liable  to  the  latter.  "The 
defendant's  omission  to  examine  the  state  of  the  pipes," 
said  the  court,  "was  a  nonfeasance.  *  *  *  As  the  facts 
are,  the  nonfeasance  caused  the  act  done  to  be  a  misfeasance. 
But  from  what  did  the  plaintiff  suffer?  Clearly  from  the 
act  done,  which  was  no  less  a  misfeasance  by  reason  of  its 
being  preceded  by  a  nonfeasance."  "  And  so,  where  the 
superintendent  of  a  manufacturing  establishment  and  other 
agents  and  servants  of  the  corporation  negligently  placed  a 
tackle  block  so  that  it  fell  and  injured  the  plaintiff,  it  was  held 
that  they  were  liable.  "If  the  agent  once  actually  under- 
takes and  enters  upon  the  execution  of  a  particular  work," 
said  Gray,  C.  J.,  "it  is  his  duty  to  use  reasonable  care  in  the 
manner  of  executing  it,  so  as  not  to  cause  any  injury  to  third 
persons  which  may  be  the  natural  consequences  of  his  acts ; 
and  he  cannot,  by  abandoning  its  execution  midway  and 

20  Denny  v.  Manhattan  Co.,  2  Denio  (N.  Y.)  115;   Id.,  5  Denio  (N. 
Y.)  639;   Hill  v.  Caverly,  7  N.  H.  215,  26  Am.  Dec.  735;   Delaney  v. 
Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456;    Reid  v.  Humber,  49 
Ga.  207;  Feltus  v.  Swan,  62  Miss.  415. 

21  Bell  v.  Josselyn,  3  Gray,  309,   63  Am.   Dec.  741;    Osborne  v. 
Morgan,  130  Mass.  102,  39  Am.  Rep.  437;    Phelps  v.  Wait.  30  N.  Y. 
78;    Horner  v.  Lawrence,  37  N.  J.  Law,  46;    Harriman  v.  Stowe,  57 
Mo.  93;   Lottman  v.  Barnett,  62  Mo.  159;    Miller  v.  Staples,  3  Colo. 
App.  93,  32  Pac.  81.    See  Jaggard,  Torts,  286-291. 

22  Bell  v.  Josselyn,  supra.     See,  also,  Greenberg  Y.  Lumber  Co., 
90  Wis.  225,  63  N.  W.  93,  28  L.  R.  A.  439,  48  Am.  SL  Rep.  911. 


384  LIABILITY  OP  AGENT  TO  THIRD  PERSON.  (Gh.  13 

leaving  things  in  a  dangerous  condition,  exempt  himself  from 
liability.  *  *  *  This  is  not  nonfeasance,  or  doing  noth- 
ing ;  but  it  is  misfeasance,  doing  improperly.  *  *  *  The 
plaintiff's  action  is  not  founded  on  any  contract.  *  *  * 
The  fact  that  a  wrongful  act  is  a  breach  of  a  contract  between 
the  wrongdoer  and  one  person  does  not  exempt  him  from 
the  responsibility  for  it  as  a  tort  to  a  third  person  injured 
thereby."  " 

It  must  be  remembered  that  it  is  only  for  neglect  of  a 
duty  which  is  imposed  upon  him  as  a  member  of  society  that 
the  agent  is  liable  to  third  persons.  Thus,  where  an  agent 
is  charged  with  the  management  of  a  house  and  with  the 
duty  of  keeping  it  in  repair,  his  duty  is  solely  to  his  principal, 
and  consequently  he  is  not  liable  to  a  third  person  who  is 
injured  by  accident  caused  by  his  failure  in  that  regard.24 
It  must  be  conceded,  however,  that  there  is  a  tendency  to 
ignore  this  distinction  in  such  cases,  and  to  hold  agents  in 
charge  of  property  to  a  peculiar  responsibility.25  And  in  a 
recent  case  an  agent  was  held  liable  to  a  person  injured  by 

*«  Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437. 

24  Delaney  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456. 

An  agent  in  charge  of  a  building  who  fails  to  make  necessary  re- 
pairs is  not  liable  to  a  tenant  injured  by  such  failure.  Dean  v. 
Brock,  11  Ind.  App.  507,  38  N.  E.  829. 

An  agent  in  charge  of  a  plantation  is  not  liable  to  the  owner  of 
an  adjoining  plantation  for  damage  resulting  from  malicious  neglect 
and  refusal  to  keep  open  a  drain  which  it  was  his  duty  as  such  agent 
to  keep  open.  Feltus  v.  Swan,  62  Miss.  415. 

An  agent  charged  with  the  duty  of  superintending  the  erection  on 
his  principal's  premises  of  a  grand-stand  for  a  foot-ball  game  was 
not  liable  to  persons  injured  by  his  negligence  in  permitting  a  de- 
fective structure.  Van  Antwerp  v.  Linton,  89  Hun,  417,  35  N.  Y. 
Supp.  318,  affirmed  157  N.  Y.  716,  53  N.  E.  1133,  following  Murray 
v.  Usher,  117  N.  Y.  542,  23  N.  E.  564. 

26  Lough  v.  John  Davis  &  Co.  (Wash.)  70  Pac.  491;  Mayer  v. 
Building  Co.,  104  Ala.  611,  16  South.  620,  28  L.  R.  A.  433,  53  Am. 
St.  Rep.  88;  Ellis  v.  McNaughton,  76  Mich.  237,  42  N.  W.  1113,  15 
Am.  St.  Rep.  308. 


§§  96-97)  LIABILITY  FOB  TORTS.  385 

his  failure  to  keep  in  repair  premises  of  which  he  had  been 
given  control.*6 

Subagents  and  CoagenU. 

An  agent  is  not,  as  a  rule,  liable  to  third  persons  for  loss 
or  injury  caused  by  the  wrongful  act  or  omission  of  a  sub- 
agent  or  coagent,  unless  he  authorized  or  participated  there- 
in.27 In  cases  of  libel,  however,  a  stricter  rule  prevails,  and 
the  manager  of  a  newspaper  is  equally  liable  with  the  pro- 
prietor or  publisher  for  the  publication  of  a  libelous  article, 
whether  he  knows  of  the  publication  or  not,  since  it  is  his 
business  to  know.28 

2«  Lough  v.  John  Davis  &  Co.  (Wash.)  70  Pac.  491.  See,  also, 
Baird  v.  Shipraan,  132  I1L  10,  23  N.  E.  384,  7  L.  R.  A.  128,  22  Ain. 
St.  Rep.  504,  and  Campbell  v.  Sugar  Co.,  62  Me.  552,  16  Am.  Rep. 
503,  in  which  cases,  however,  the  agent  let  premises  in  dangerous 
condition,  promising  to  repair. 

27  Stone  v.  Cartwright,  6  T.  R.  411;  Baer  v.  Stevenson,  30  L.  T. 
117;  Cargill  v.  Brown,  10  Ch.  D.  502;  Weir  v.  Barnett,  3  Ex.  D.  238; 
Brown  v.  Lent,  20  Vt.  529. 

zs  Nevin  v.  Spieckeraann  (Pa.)  4  Atl.  497;    Smith  v.  Utley,  92  Wis. 
133,  65  N.  W.  744,  35  L.  R,  A.  620. 
TIFF.P.&  A.— 25 


386  LIABILITY  OF  THIRD  PERSON  TO  AGENT.  (Gil.  14 

CHAPTER  XIV. 

LIABILITY  OP  THIRD  PERSON  TO  AGENT. 

98.  Liability  on  Contract— Right  of  Agent  to  Sue. 

99.  Intervention  by  Principal. 

100.  Defenses. 

101.  When  Professed  Agent  Is  Real  Principal. 

102.  Liability  for  Money  Had  and  Received. 

103.  Liability   for  Torts. 

LIABILITY   ON   CONTRACT— BIGHT   OF  AGENT   TO    SUE.' 

88.  An  agent  may  sue  in  his  own  name  on  a  contract  made  by 
him  on  behalf  of  his  principal:  (1)  "When  he  has  con- 
tracted personally;  and  (2)  when  he  has  a  special 
property  in,  or  lien  upon,  the  subject-matter  of  the 
contract. 

SAME— INTERVENTION    BY    PRINCIPAL 

99.  The  right  of  the  agent  to  sue  ceases  on  the  intervention 

of  the  principal,  unless  the  agent  has  as  against  him  a 
right  of  lien  on  the  subject-matter  of  the  contract,  in 
which  case  the  right  of  action  of  the  agent  has  prior- 
ity to  that  of  the  principal. 

SAME—DEFENSES. 

100.  In    an   action   by    the    agent,    the    defendant   may    avail 

himself  of  any  defense  which  •would  be  good— 

(1)  As  against  the  plaintiff  of  record;    or 

(2)  As  against  the  principal. 

EXCEPTION:  If  the  agent  has,  as  against  the  principal, 
a  right  of  lien  on  the  subject-matter  of  the  contract, 
a  settlement  -with  the  principal  is  not  available  as  a 
defense  to  the  prejudice  of  the  agent's  claim,  unless  the 
defendant  was  led  to  believe  that  the  agent  acquiesced 
therein. 

§§  98-100.    i  Following  substantially  Bowstead,  Dig.  Ag.  art  119- 
121. 


§§  98-100)  LIABILITY   ON   CONTRACT.  387 

Contract  in,  Name  of  Agent. 

When  a  contract  is  made  by  an  agent  in  his  own  name,  he 
is  bound  thereby  and  has  a  corresponding  right  to  sue  there- 
on. The  rules  which  determine  whether  a  contract  is  to  be 
deemed  the  contract  of  the  principal  or  of  the  agent  have 
already  been  considered.2  If  the  contract  is  the  contract  of 
the  agent,  and  is  under  seal  *  or  negotiable,4  he,  and  he  only, 
can  sue  upon  it.  If  the  contract  is  the  contract  of  the  agent, 
and  is  not  under  seal  or  negotiable,  the  principal,  although 
undisclosed,8  may  sue  upon  it,  and  the  agent,  subject  to  the 
qualifications  to  be  mentioned,  may  also  sue.*  And  although 
the  principal  be  disclosed,  if  the  agent  contracts  personally 
he  may  sue.1  The  agent's  promise  is  a  sufficient  considera- 
tion for  an  undertaking  to  him  personally.  It  is  immaterial 
that  the  beneficial  interest  is  in  the  principal,  and  that  the 
agent  when  he  recovers  will  be  bound  to  account  to  him. 
Thus,  an  agent  who  sells  goods  for  an  undisclosed  principal 
may  recover  the  price;8  or  an  agent  who  consigns  goods, 
taking  a  bill  of  lading  or  otherwise  contracting  in  his  own 
name,  may  sue  for  nondelivery  or  other  breach  of  the  con- 
tract.9 "There  is  privity  of  contract,"  said  Lord  Ellenbor- 

2  Ante,  p.  331  et  seq.  «  Ante,  p.  244. 

•  Ante,  p.  243.  «  Ante,  p.  :-'.U3. 

•  Joseph  v.  Knox,  3  Camp.  320;    Gardner  v.  Davis,  2  O.  &  P.  49; 
Sims  v.  Bond,  5  B.  &  Ad.  389,  393;    Coiburn  v.  Phillips,  13  Gray 
(Mass.)  64;    Alsop  v.  Caines,  10  Johns.  (N.  Y.)  396;    United  States 
Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519;    Sharp  v. 
Jones,  18  Ind.  314,  81  Am.  Dec.  359. 

i  Cooke  v.  Wilson,  1  C.  B.  (N.  S.)  153;  Albany  &  R.  Iron  &  Steel 
Co.  v.  Luiidberg,  121  U.  S.  451,  7  Sup.  Ct.  958,  30  L.  Ed.  982;  Pelton 
v.  Baker,  158  Mass.  349,  33  N.  E.  394;  Ludwig  v.  Gillespie,  105  N. 
Y.  653,  11  N.  E.  835;  Doe  v.  Thompson,  22  N.  H.  217;  Potts  v.  Rider, 
3  Ohio,  70,  17  Am.  Dec.  581;  Tustin  Fruit  Assn.  v.  Fruit  Co.  (Cal.) 
53  Pac.  693. 

»  Gardner  v.  Davis,  2  a  &  P.  49;  Alsop  v.  Caines,  10  Johns.  (N. 
Y.)  396. 

•  Joseph  Y.  Knox,  3  Camp.  320;   Dunlop  v.  Lambert,  6  Cl.  &  P.  600; 
Blanchard  Y.  Page,  8  Gray  (Mass.)  281;    Finn  v.  Railroad  Corp.,  112 


388  LIABILITY  OP  THIRD   PERSON  TO  AGENT.  (Ch.  14 

ough,  "established  between  these  parties  by  means  of  the  bill 
of  lading.  *  *  *  To  the  plaintiffs,  therefore,  from  whom 
the  consideration  moves,  and  to  whom  the  promise  is  made, 
the  defendant  is  liable.  *  *  *  We  cannot  say  to  the  ship- 
pers they  have  no  interest  in  the  goods  and  are  not  damnified 
by  the  breach  of  contract.  I  think  the  plaintiffs  are  entitled 
to  recover  the  value  of  the  goods,  and  they  will  hold  the  sum 
recovered  as  trustees  for  the  real  owner." 10  Even  where 
the  principal,  with  the  acquiescence  of  the  broker  who  had 
contracted  in  his  own  name  to  purchase  goods,  refused  to 
have  anything  to  do  with  them,  the  contract  nevertheless 
remaining  enforceable  against  them,  it  was  held  that  the  bro- 
ker, having  contracted  personally,  could  recover  damages 
against  the  seller  for  nondelivery.11  When  the  agent  has 
no  beneficial  interest  in  the  contract,  his  right  of  action  does 
not  pass  to  his  assignee  in  bankruptcy.12 

The  right  of  the  agent  to  maintain  an  action  is  not  abolish- 
ed by  the  provision  of  the  codes  which  provides  that  every 
action  must  be  prosecuted  in  the  name  of  "the  real  party 
in  interest,"  since  an  exception  is  created  in  favor  of  "the 
trustee  of  an  express  trust,"  and  "a  person  with  whom,  or  in 
whose  name,  a  contract  is  made  for  the  benefit  of  another" 
is  declared  to  be  such  trustee,  within  the  meaning  of  the 
term.18 


Mass.  524,  17  Am.  Rep.  128;  Carter  v.  Railway  Co.,  Ill  Ga.  38,  36 
S.  E.  308,  50  L.  R.  A.  354. 

Where  an  agent  sent  the  proceeds  of  sale  to  the  owner  by  ex- 
press, he  could  maintain  an  action  against  the  express  company  for 
loss  of  the  money.  Snider  v.  Express  Co.,  77  Mo.  523. 

10  Joseph  v.  Knox,  3  Camp.  320. 

»i  Short  v.  Spackman,  2  B.  &  Ad.  962. 

«  Rhoades  v.  Blackiston,  106  Mass.  334,  8  Am.  Rep.  332. 

is  Consideraut  v.  Brisbane,  22  N.  Y.  389;  Landwerlen  v.  Wheeler, 
106  Ind.  526,  5  N.  E.  888;  Cremer  v.  Wimmer,  40  Minn.  511,  42  N. 
W.  467;  Snider  v.  Express  Co.,  77  Mo.  523;  Hudson  v.  Archer,  4 
S.  D.  128,  55  N.  W.  1099. 

This  rule  is  applicable  in  the  federal  courts  held  within  the  code 
states.  Albany  &  R.  Iron  &  Steel  Co.  v.  Lundberg,  121  U.  S.  451, 


§§  98-100)  LIABILITY   ON   CONTRACT.  389 

The  agent's  right  of  action,  however,  unless  he  has  a  special 
interest  in  the  subject-matter,  is  subservient  to  the  right  of 
the  principal,  who  may  supersede  the  agent's  right  by  suing 
in  his  own  name  or  otherwise  intervening.14  An  assign- 
ment for  the  benefit  of  creditors  on  the  part  of  the  principal 
works  a  revocation  of  the  agency  and  terminates  the  agent's 
right  of  action.16 

When,  Agent  has  Interest  in   Subject- Matter. 

The  agent  may  have  such  a  special  interest  in  the  subject- 
matter  of  the  contract  as  to  entitle  him  to  sue  in  his  own 
name.16  A  factor  "  or  an  auctioneer  18  has  a  special  prop- 
erty in  the  goods,  and  may  hence  sue  in  his  own  name.  A 
broker,  on  the  other  hand,  having  no  such  special  property, 
is  not  entitled  to  sue  unless  he  contracts  personally,  or  unless 
under  the  circumstances  of  the  case  he  does  in  fact  have  such 
special  property.19  If  the  agent  has,  as  against  his  principal, 
a  right  of  lien  in  the  subject-matter,  his  right  to  sue  on  the 
contract  has  priority,  during  the  existence  of  his  claim,  to 
that  of  the  principal.*0 

7  Sup.  Ct  958,  30  L.  Ed.  982.  Cf.  Ward  v.  Ryba,  58  Kan.  741, 
61  Pac.  223. 

n  Sadler  v.  Leigh,  4  Camp.  195;  Morris  v.  Cleasby,  1  M.  &  S. 
676,  579.  See  Dickinson  v.  Xaul,  4  B.  &  Ad.  638. 

is  Miller  v.  Bank,  57  Minn.  319,  59  N.  W.  309. 

i«  Atkins  v.  Amber,  2  Esp.  493;  Drlnkwater  v.  Goodwin,  Cowp. 
251. 

IT  Drlnkwater  v.  Goodwin,  Cowp.  251;  Tolaud  v.  Murray,  18 
Johns.  (N.  Y.)  24;  Groover  v.  Warfield,  50  Ga.  644;  Graham  v. 
Duck-wall,  8  Bush  (Ky.)  12. 

is  Williams  v.  Millington,  1  H.  Bl.  81;  Wolfe  v.  Home,  2  Q.  B. 
D.  355;  Hulse  v.  Young,  16  Johns.  (N.  Y.)  1;  Mlnturn  v.  Main,  7 
N.  Y.  220;  Beller  v.  Block,  19  Ark.  566. 

10  Fairlie  v.  Fenton,  L.  R.  5  Ex.  169;  White  v.  Chouteau,  10  Barb. 
(N.  Y.)  202;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96 
Am.  Dec.  519. 

20  Drinkwater  Y.  Goodwin,  Cowp.  251;  Bowstead,  Dig.  Ag.  art. 
120.  Cf.  Moliue  Malleable  Iron  Co.  v.  Iron  Co.,  27  C.  a  A.  442, 
83  Fed.  66. 


390  LIABILITY  OF  THIRD  PERSON  TO  AGENT.  (Ch.  14 

Defenses  m  Action  by  Agent. 

Since  the  right  of  the  principal  to  sue  is  superior,  the  de- 
fendant may  in  a  suit  by  the  agent  avail  himself  of  any  de- 
fense, in  law  or  equity,  which  would  have  been  good  against 
the  principal.  Thus,  a  settlement  with  the  principal  is  a  good 
defense.21  Under  the  statute  of  set-offs  it  has  been  held  that 
the  defendant  cannot  set  off  a  debt  due  from  the  principal ; 22 
but  the  contrary  has  also  been  held.28  If,  on  the  other  hand, 
the  agent  by  reason  of  a  lien,  as  against  the  principal,  upon  the 
subject-matter,  has  a  superior  right  to  sue,  a  settlement  with 
the  principal  is  not  a  defense  when  such  settlement  would 
prejudice  the  agent's  claim,2*  unless  the  defendant  was  led 
by  the  terms  or  conditions  of  the  contract,  or  by  the  conduct 
of  the  agent,  to  believe  that  the  agent  acquiesced  in  a  settle- 
ment with  the  principal.26 

The  defendant  is  also  entitled  to  any  defense  which  would 
be  good  against  the  plaintiff  on  the  record,  although  it  would 
not  be  good  against  the  principal  suing  in  his  own  name.26 
Thus,  where  an  insurance  broker  sued  on  a  policy  effected  in 
his  name,  payment  to  him  by  allowing  him  credit  for  premi- 
ums due  from  him  to  defendants,  although  it  would  not  have 
constituted  payment  as  between  the  insurers  and  the  assured, 
was  held  a  defense.  "The  plaintiff,"  said  Denman,  C.  J., 
"though  he  sues  as  trustee  of  another,  must,  in  a  court  of 
law,  be  treated  in  all  respects  as  the  party  in  the  cause:  if 
there  is  a  defense  against  him,  there  is  a  defense  against  the 
cestui  que  trust  who  uses  his  name;  and  the  plaintiff  cannot 


*i  Atkinson  v.  Cotesworth,  3  B.  &  C.  647. 

•2  isberg  v.  ^owden,  8  Ex.  852;  Alsop  v.  Caines,  10  Johns.  (N. 
T.)  396. 

zs  Bliss  v.  Sneath,  103  Cal.  43,  36  Pac.  1029;  Hayden  v.  Bank,  29 
111.  App.  458. 

2*  Robinson  v.  Rutter,  4  El.  &  B.  954. 

«  Grice  v.  Kendrick,  L.  R.  5  Q.  B.  340. 

*«  Gibson  v.  Winter,  6  B.  &  Ad.  06;  Holden  v.  Railroad  Co.,  73 
Vt.  317,  50  Atl.  1096. 


§  101)      WHEN   PROFESSED  AGENT   IS   REAL  PRINCIPAL.         391 

be  permitted  to  say  for  the  benefit  of  another  that  his  own 
act  is  void,  which  he  cannot  say  for  the  benefit  of  himself."  " 

Measure  of  Damages. 

The  measure  of  damages  in  a  suit  by  the  agent  is  the  same 
as  in  a  suit  by  the  principal,  since  the  plaintiff  will  hold  the 
amount  recovered  in  trust  for  the  latter.*8 

WHEN  PROFESSED  AGENT  18  REAL  PRINCIPAL. 

101.  When  a  person  who  contracts  professedly  as  agent  for  a 
named  principal  is  in  fact  the  real  principal,  he  may 
sne  on  the  contract  if  performance,  in  whole  or  in  part, 
has  been  accepted  by  the  other  party  with  knowledge 
that  he  is  the  real  principal.  When  a  person  who  con- 
tracts professedly  as  agent  of  an  undisclosed  principal 
is  in  fact  the  real  principal,  he  may  (perhaps)  sne  on 
the  contract,  although  there  has  been  no  recognition 
of  him  in  the  character  of  principal  by  the  other  party. 

Where  a  contract  is  made  by  an  agent  in  the  name  of  his 
principal,  as  a  rule  the  principal,  and  he  only,  may  sue  there- 
on. The  agent  is  not  a  party  to  the  contract,  and  conse- 
quently may  not  maintain  an  action.1  And  where  one  who 
professes  to  contract  as  agent  of  a  named  principal  is  in  fact 
the  real  principal,  it  would  seem  that  the  same  rule  should 
apply,  and  that,  the  contract  being  expressly  with  another 
person,  the  person  contracting  as  agent  could  not  maintain 
an  action  in  whatsoever  character.*  Where  the  character 
and  credit  of  the  person  who  is  named  as  principal  may  rea- 
sonably be  considered  as  a  material  ingredient  in  the  con- 
tract, it  is  conceded  that  the  professed  agent  cannot,  at  least 
when  the  other  party  has  not  recognized  him  as  the  real 
principal,  show  himself  to  be  such  and  maintain  an  action; 

IT  Gibson  v.  Winter,  5  B.  &  Ad.  96. 

»s  Joseph  v.  Knox,  3  Camp.  320;  United  States  Tel.  Co.  r.  Glider- 
sieve,  29  Md.  232,  96  Am.  Dec.  519;  Groover  v.  Warfield,  50  Ga. 
644;  Evrit  v.  Bancroft,  22  Ohio  St  172. 

§  101.     lAnte,   p.  302. 

2  See  Hollman  v.  Pullin,  1  Cab.  &  E.  254. 


392  LIABILITY  OF  THIRD  PERSON  TO  AGENT.  (Oil.  14 

and  it  is  probably  true  that  in  all  executory  contracts,  unless 
part  performance  has  been  accepted  with  knowledge  of  the 
true  principal,  the  rule  is  the  same.3  On  the  other  hand,  it 
has  been  held  that  when  the  plaintiff,  professedly  as  agent 
for  a  named  principal,  contracted  in  writing  to  sell  goods, 
and  the  buyer,  with  notice  that  he  was  the  real  principal, 
accepted  and  paid  for  part  of  the  goods,  the  plaintiff  could 
maintain  an  action  for  nonacceptance  of  the  residue.4 

A  distinction  has  been  drawn  between  cases  where  the 
professed  agent  contracts  as  agent  of  a  named  and  of  an  un- 
named principal.  In  the  latter  case  it  has  been  held  that 
since  the  other  party  cannot  have  contracted  in  reliance  upon 
the  unnamed  principal  personally  the  ostensible  agent  can  sue 
upon  the  contract,  although  there  has  been  no  recognition 
of  him  by  the  other  party  as  real  principal.8  But  where  the 

•  Rayner  v.  Grote,  15  M.  &  W.  350;    Schmaltz  v.  Avery,  16  Q. 
B.  655,  per  Patterson,  J. 

It  has  been  intimated,  however,  that  the  professed  agent  can  sue, 
If  before  action  he  gives  notice  that  he  is  the  real  principal.  Bicker- 
ton  v.  Burrell,  5  M.  &  S.  383;  Foster  v.  Smith,  2  Cold.  (Term.)  474, 
88  Am.  Dec.  604;  ante,  p.  307. 

*  Rayner   v.    Grote,    15   M.    &  W.   359;    Whiting   v.  William   H. 
Crawford  Co.,  93  Md.  390,  49  Atl.  615. 

«  Schmaltz  v.  Avery,  16  Q.  B.  655. 

In  that  case  Schmaltz  &  Co.  signed  a  charter  party  as  "agents  of 
the  freighter,"  a  clause  being  inserted  limiting  their  liability  in  view 
of  the  "charter  being  concluded  on  behalf  of  another  party."  It 
was  held  that  Schmaltz  &  Co.,  who  were  themselves  the  freighters, 
might  sue  upon  the  contract.  "The  names  of  the  supposed  freight- 
ers not  being  inserted,"  said  Patterson,  J.,  "no  inducement  to  enter 
Into  the  contract  from  the  supposed  solvency  of  the  freighters 
can  be  surmised.  *  *  *  There  is  no  contradiction  of  the  charter 
party  if  the  plaintiff  can  be  considered  as  filling  two  characters, 
namely,  those  of  agent  and  principal.  A  man  cannot,  in  strict 
propriety  of  speech,  be  said  to  be  agent  to  himself.  Yet,  in  a 
contract  of  this  description,  we  see  no  absurdity  in  saying  that 
he  might  fill  both  characters;  that  he  might  contract  as  agent  for 
the  freighter,  whoever  that  freighter  might  turn  out  to  be,  and 
might  still  adopt  that  character  of  freighter  if  he  chose.  There  is 
nothing  in  the  argument  that  the  plaintiff's  responsibility  is  ex- 


§  102)      LIABILITY  FOE  MONEY  HAD  AND  RECEIVED.  393 

contract  is  within  the  statute  of  frauds,  it  has  been  held  that 
a  written  contract  in  such  form  is  not  a  sufficient  memo- 
randum, so  as  to  entitle  the  professed  agent  to  sue.* 

LIABILITY  FOR  MONEY  HAD  AND  RECEIVED. 

102.  When  an  agent  pays  money  for  his  principal  nnder  a 
mistake  of  fact  or  for  a  consideration  which  fail*,  he 
may  maintain  an  action  for  its  recovery. 

"Where  a  man  pays  money  by  his  agent,  which  ought  not 
to  have  been  paid,  either  the  agent  or  the  principal  may 
bring  an  action  to  recover  it  back.  The  agent  may,  from  the 
authority  of  the  principal,  and  the  principal  may,  as  proving  it 
to  have  been  paid  by  his  agent."  *  Thus,  the  agent  may  re- 
cover money  paid  under  an  illegal  contract,  but  in  ignorance 
of  the  illegality ;  a  or  paid  under  inducement  of  fraud ;  3  or 
paid  to  a  third  person  in  exchange  for  a  counterfeit  bill,  al- 

pressly  made  to  cease  'as  soon  as  the  cargo  Is  shipped,'  for  that 
limitation  plainly  applies  only  to  his  character  as  agent;  and  being 
real  principal,  his  responsibility  would  unquestionably  continue  after 
the  cargo  was  shipped."  See  Mechem,  Ag.  §  760. 

«  Where  a  broker  signed  a  contract  note,  professedly  as  agent  for 
an  undisclosed  principal,  acting  in  fact  upon  his  own  behalf,  of 
which  the  other  party  was  not  aware,  it  was  held  that  he  could 
not  sue  on  the  contract,  because  there  was  no  memorandum  to 
satisfy  the  statute  of  frauds;  and  some  of  the  judges  laid  down  that 
he  could  not  sue  because  the  contract  was  not  with  him.  Sharman 
v.  Brandt,  L.  R.  6  Q.  B.  720. 

But  where  an  agent  signed  a  memorandum  with  the  name  of  his 
principal,  and  the  party  sought  to  be  charged,  who  had  also  signed, 
supposed  he  was  contracting  with  the  agent  personally,  and  that 
the  signature  was  his  own  name,  it  was  held  that  the  memorandum 
satisfied  the  statute;  and  that,  if  defendant  sough^  to  defend  on 
the  ground  that  his  supposition  was  caused  by  fraud,  the  question 
was  for  the  Jury,  and  could  not  be  assumed  as  a  basis  for  a  ruling 
that  the  contract  was  void.  Hunter  v.  Giddings,  97  Mass.  41,  93 
Am.  Dec.  54. 

S  102.    i  Per  Lord  Mansfield  in  Stevenson  v.  Mortimer,  Cowp.  805. 

2  Oom  v.  Bruce,  12  East,  224. 

»  Holt  v.  Ely,  1  E.  &  B.  795. 


394  LIABILITY  OF  THIRD   PERSON  TO  AGENT.  (Cll.  14 

though  there  was  no  authority  to  exchange  such  money  with 
such  third  person.* 


LIABILITY  FOR  TOUTS. 

1O3.  An  agent  who  is  in  the  possession  of  or  has  a  special 
property  in  the  goods  of  his  principal  may  maintain 
an  action  against  a  third  person  for  trespass  or  con- 
version. 

The  liability  of  third  persons  to  the  agent  for  torts  is 
mainly  confined  to  cases  where  his  right  of  possession  is 
invaded.1  A  factor  or  other  agent  who  is  in  possession  of 
the  goods  of  his  principal  may  maintain  an  action  of  tres- 
pass or  trover  *  for  injuries  affecting  his  possession,  and  in 
case  of  conversion  may  recover  the  full  value.8  If  an  agent 
has  a  special  property,  as  a  factor  to  whom  goods  have  been 
consigned,  it  is  not  essential  to  his  right  of  recovery  that 
he  be  in  actual  possession  when  his  right  is  invaded.4 

An  action  lies  on  behalf  of  an  employe  against  a  person 
who  maliciously  and  without  justifiable  cause  induces  his 
employer  to  discharge  him.1 

«Kent  v.  Bornstein,  12  Allen  (Mass.)  342. 
|  103.     i  Story,  Ag.  §  416. 

An  agent  who  sells  on  commission  may  recover  for  a  Hbelous 
statement  causing  loss  of  sales.  Weiss  v.  Whittemore,  28  Mich.  366. 

*  Burton  v.  Hughes,  2  Bing.  173,  176;    Moore  v.  Robinson,  2  B. 
A  Ad.  817;   Robinson  v.  Webb,  11  Bush    (Ky.)  464. 

Actual  possession,  pure  and  simple,  will  sustain  an  action  for 
trespass.  Jaggard,  Torts,  670;  Taylor  v.  Hayes,  63  Vt  475,  21  Atl. 
610;  Laing  v.  Nelson,  41  Minn.  521,  43  N.  W.  476. 

*  Mechanics'  &  Traders'  Bank  v.  Bank,  60  N.  Y.  40. 

*  Fowler    v.    Down,    1    B.    &    P.    44,    47;     Rooth    v.    Wilson,    1 
B.  &  Aid.  59;    Fitzhugh  v.  Wiman,  9  N.  Y.  559;    Beyer  v.  Bush,  50 
Ala.  19. 

B  Moran  v.  Dunphy,  177  Mass.  485,  59  N.  B.  125,  52  L.  R.  A.  115, 
83  Am.  St.  Rep.  289;  Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E. 
297,  37  L.  R.  A.  802,  57  Am.  St.  Rep.  496;  Chipley  v.  Atkinson,  23 
Fla.  206,  1  Smith.  934,  11  Am.  St.  Rep.  367. 


§  104)  DUTIES  OF  AGENT  TO  PRINCIPAL.  395 


PART  IV 

RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 


CHAPTER  XV. 

DUTIES  OF  AGENT  TO  PRINCIPAL. 

104.  Duties  of  Agent  to  Principal— In  General. 

105.  Duty  to  Obey  Instructions. 

106.  Duty  to  Exercise  Skill,  Care,  and  Diligence. 

107.  Duty  to  Exercise  Good  Faith. 

108.  Duty  to  Account 

DUTIES  OF  AGENT  TO  PRINCIFAIr-IN  GENERAL. 

104.  It  is  the  duty  of  the  agent— 

(1)  To  obey  instructions; 

(2)  To  exercise  skill,  care,  and  diligence; 

(3)  To  act  in  good  faith;    and 

(4)  To  account. 

The  obligations  of  principal  and  agent  are  to  a  great 
extent  determined  by  the  contract  of  employment  or  the 
terms  of  the  appointment.  Their  mutual  undertakings  may 
be  express,  but  in  most  cases  are  to  a  greater  or  less  extent 
to  be  implied  from  the  nature  and  the  circumstances  of  the 
particular  agency.  The  peculiar  obligations  of  some  classes 
of  agents,  such  as  factors  and  brokers,  are  defined  by  usage. 
Certain  duties,  however,  resting  upon  the  parties,  result  from 
the  very  nature  of  the  relation,  and  are  common  to  all 
agencies,  except  so  far  as  they  may  be  modified  by  express 
agreement,  or  by  the  understanding  of  the  parties  to  be  im- 
plied from  the  particular  circumstances.  The  duties  of  this 
character  which  rest  upon  the  agent  naturally  fall  under  the 
four  heads  enumerated  in  the  black-letter  text. 


396  DUTIES  OP  AGENT  TO  PRINCIPAL*  (Ch.  15 

Duty  to  Act  in  Person. 

The  duty  of  the  agent  to  act  in  person  has  been  considered 
in  the  chapter  treating  of  delegation  by  the  agent. 

SAME— DUTY  TO  OBEY  INSTRUCTIONS. 

1O5.  It  is  the  duty  of  the  agent  to  obey  the  instructions  of 
his  principal,  and  if  he  fails  to  do  so  he  is  liable  in 
damages  for  any  resulting  loss;  except— 

EXCEPTIONS:      (a)    Where  obedience  would  require  him  to 
perform  an  illegal  or  immoral  act; 

(b)  Where  a  departure  from  instructions  is  justified  by  the 

occurrence  of  an  unforeseen  emergency,  or  perform- 
ance has,  without  the  default  of  the  agent,  become  im- 
possible. 

(c)  Where  obedience  -would  impair  his  security  for  advances 

made  upon  goods  consigned  to  him  for  sale. 

Duty  to  Obey  Instructions. 

Every  agent  is  bound  to  execute  the  orders  of  his  prin- 
cipal whenever,  for  a  valuable  consideration,  he  has  under- 
taken, expressly  or  by  implication,  to  perform  them.  It  is 
his  first  duty  to  pursue  the  terms  of  his  authority  and  to 
adhere  strictly  to  his  instructions.  The  duty  of  the  agent 
to  obey  the  instructions  given  by  the  principal  with  refer- 
ence to  the  agency  is  inherent  in  the  very  nature  of  the  rela- 
tion. His  right  to  act  at  all  in  the  capacity  of  agent  comes 
solely  from  the  authority  of  the  principal,  and,  as  between 
them,  the  authority  is  inseparable  from  the  instructions.  A 
voluntary  deviation  by  the  agent  from  his  instructions  is  at 
his  peril,  and,  subject  to  the  exceptions  afterwards  stated,1 
renders  him  liable  to  the  principal  for  any  resulting  loss,2  un- 
less the  principal,  with  full  knowledge  of  the  facts,  ratifies 

§  105.    »  Post,  p.  402  et  seq. 

2  Whitney  v.  Express  Co.,  104  Mass.  152,  6  Am.  Rep.  207;  Froth- 
ingham  v.  Everton,  12  N.  H.  239;  Fuller  v.  Ellis,  39  Vt.  345,  94  Am. 
Dec.  327;  Hays  v.  Stone,  7  Hill  (N.  Y.)  128;  Blot  v.  Boiceau,  8 
N.  Y.  78,  51  Am.  Dec.  345;  Adams  v.  Robinson,  65  Ala.  586;  Butts 
v.  Phelps,  79  Mo.  302. 


§  105)  DUTT   TO   OBEY   INSTRUCTIONS.  397 

his  acts.*  It  is  no  defense  that  the  course  pursued  was  rea- 
sonable or  that  it  was  intended  for  the  benefit  of  the  prin- 
cipal.4 Nor,  if  loss  results,  will  the  agent  be  heard  to  say  that 
the  deviation  was  immaterial,  unless  he  can  show  that  the 
deviation  did  not  contribute  to  the  loss.* 

Same — Implied  Instructions — Usage. 

The  instructions  may  be  implied  as  well  as  express,  for  the 
intention  of  the  principal  may  be  manifested  by  the  nature 
and  objects  of  the  transaction,  or  may  be  inferable  from 
the  previous  course  of  dealing  between  the  parties  or  from 
other  circumstances.6  And  when  a  trade  usage  or  custom 
prevails,  an  intention  on  the  part  of  the  principal  that  it  is 
to  govern  the  manner  of  performance  may  often  be  implied. 
This  implication  will  not  prevail  in  the  face  of  express  in- 
structions which  are  inconsistent  with  it.7  But  in  the  ab- 
sence of  express  instructions  it  is  to  be  implied  that  the  prin- 

•  Ante,  p.  86. 

*  Butler  v.  Knight,  L.  R.  2  Ex.   109;    Coker  v.  Roper,  125  Mass. 
577;   Rechtscherd  v.  Bank,  47  Mo,  181. 

» Wilson  v.  Wilson,  26  Pa.  393;  Walker  v.  Walker,  5  Heisk. 
(Tenn.)  425;  Adams  v.  Robinson,  65  Ala.  586. 

Where  a  principal  directed  his  agent  to  remit  by  mail  in  bills  of 
$50  or  $100,  and  the  agent  remitted  in  bills  of  $5,  $10,  and  $20, 
which  were  never  received,  the  agent  was  liable  for  the  full  amount. 
"It  is  not  sufficient,"  said  Lewis,  O.  J.,  "that  the  deviation  was  not 
material,  if  it  appears  that  the  party  giving  the  instructions  re- 
garded them  as  material,  unless  It  be  shown  affirmatively  that 
the  deviation  in  no  manner  contributed  to  the  loss.  This  may  be 
a  difficult  task  in  a  case  like  the  present,  but  the  defendant  volun- 
tarily assumed  it  when  he  substituted  his  own  plan  for  that  pre- 
scribed by  the  plaintiff."  Wilson  v.  Wilson,  supra. 

6  Story,  Ag.  §  189.  See,  generally,  chapter  7  as  to  construction 
of  authority. 

T  Robinson  v.  Mollett,  L.  R.  7  H.  L.  802;  Parsons  v.  Martin,  11 
Gray  (Mass.)  112;  Douglass  v.  Leland,  1  Wend.  (N.  Y.)  490;  Hutch- 
ings  v.  Ladd,  16  Mich.  493;  Robinson  Machine  Works  v.  Vorse,  52 
Iowa,  207,  2  N.  W.  1108;  United  States  Life  Ins.  Co.  v.  Advance 
Co..  80  111.  549;  Franklin  Ins.  Co.  v.  Sears  (C.  0.)  21  Fed.  290; 
ante,  p.  173. 


398  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

cipal  intends  the  agent  to  act  according  to  usage;  and,  even 
where  the  principal  has  given  express  instructions,  they  may 
be  interpreted  in  the  light  of  usage,  so  far  as  it  is  not  in  con- 
flict with  them.8  Thus,  an  agent  instructed  to  collect  or  to 
sell  must  ordinarily  collect  or  receive  payment  in  cash,  for 
such  an  intention  on  the  part  of  the  principal  is  to  be  im- 
plied ;  °  and  if  expressly  instructed  to  collect  in  cash  no  usage 
will  authorize  him  to  disregard  that  instruction ; 10  but  if  not 
expressly  instructed  to  that  effect,  and  it  is  the  usage  of  the 
particular  business  in  which  he  is  employed  to  accept  a  check 
in  payment  or  to  extend  credit,  he  has  implied  authority  so 
to  do.11 

Liability  for  Disobedience — Measure  of  Damages. 

Any  failure  on  the  part  of  the  agent  to  obey  the  orders 
or  to  adhere  to  the  instructions  of  his  principal  is  a  breach 
of  duty  which  entitles  the  principal  to  recover  at  least  nom- 
inal damages.12  If  the  disobedience  results  in  loss  to  the 
principal,  he  is  entitled  to  recover  substantial  damages,  meas- 

•  Bailey  v.  Bensley,  87  111.  556;    post,  p.  457. 

•  An  attorney  in  fact  authorized  to  sell  land  "for  such  sum  or 
price  and  on  such  terms  as  to  him  shall  seem  meet"  is  only  au- 
thorized to  sell  for  money;    and,  if  he  accepts  in  payment  bonds 
which  prove  worthless,  he  is  liable  for  the  money  he  should  have 
received.     Paul  v.  Grimm,   165  Pa.  139,  30  Atl.  721,  44  Am.  St 
Rep.  648. 

Where  a  bank  which  had  received  from  a  depositor  a  check  for 
collection  accepted  in  payment  a  cashier's  check,  which  was  not 
paid,  owing  to  the  subsequent  insolvency  of  the  drawer,  it  was 
liable  to  the  depositor  for  the  amount.  Fifth  Nat.  Bank  v.  Ash- 
worth,  123  Pa.  212,  16  Atl.  596,  2  L.  R.  A.  491. 

10  Bliss  v.  Arnold,  8  Vt.  252,  30  Am.  Dec.  467;  Catlin  v.  Smith, 
24  Vt.  85;  Douglass  v.  Leland,  1  Wend.  (N.  Y.)  490;  Barksdale  v. 
Brown,  1  Nott.  &  McC.  (S.  C.)  517,  9  Am.  Dec.  720;  Hall  v.  Storrs, 
7  Wis.  253;  Wanless  v.  McCandless,  38  Iowa,  20.  But  see  dark 
T.  Van  Northwick,  1  Pick.  (Mass.)  343. 

»i  Russell  v.  Hankey,  6  T.  R.  12;  Farrar  v.  Lacy,  21  Ch.  D.  42. 
See,  also.  Pope  v.  Westacott  [1894]  1  Q.  B.  272. 

12  Frothingham  v.  Everton,  12  N.  H.  239;  Blot  v.  Boiceau,  3 
N.  Y.  78,  51  Am.  Dec.  345;  Adams  v.  Robinson,  65  Ala.  586. 


§  105)  DUTY   TO   OBEY   INSTRUCTIONS.  399 

ured  by  the  amount  of  the  loss.  It  must,  of  course,  appear 
that  a  loss  has  actually  resulted  from  the  breach.  For  ex- 
ample, there  can  be  no  recovery  of  substantial  damages  for 
failure  to  insure  a  ship,  if  the  principal  had  no  insurable 
interest,  or  if  the  ship,  in  the  course  of  the  voyage,  has  so 
deviated  that  the  insurance,  had  it  been  effected,  would  have 
been  rendered  void.18  The  loss  must  be  the  natural  and 
proximate  result  of  the  disobedience,  but  it  need  not  be  the 
immediate  result.  Thus,  where  the  loss  is  immediately  caus- 
ed by  an  accident  or  the  wrongdoing  of  a  third  person,  if 
the  property  or  interest  which  is  the  subject  of  the  instruc- 
tions would  not  have  been  exposed  to  such  risk  but  for  the 
agent's  disobedience,  the  loss  is  attributable  to  the  disobedi- 
ence as  the  proximate  cause.1* 

Same — Illustrations. 

The  following  cases  will  serve  to  illustrate  the  nature  of 
the  agent's  duty  to  obey  instructions  and  the  extent  of  his 
liability  for  disobedience:  If  an  agent  is  instructed  to  in- 
sure property,  and  neglects  to  do  so,  he  is  liable  to  the  prin- 
cipal for  its  value  in  the  event  of  its  being  lost.15  If  an  agent 
is  instructed  to  sell  shares  when  they  reach  a  certain  price, 
and  fails  to  do  so,  he  is  liable  for  the  difference  between  the 
value  of  the  shares  and  the  price  which  might  have  been  so 
obtained.16  If  an  agent,  being  directed  to  warehouse  goods 
at  a  certain  place,  warehouses  them  at  a  different  place,"  or, 

*»  Fourin  v.  Oswell,  1  Camp.  359;    Alsop  v.  Colt,  12  Mass.  40. 

i«  Wilson  v.  Wilson,  26  Pa.  393. 

IB  De  Tastett  v.  Orousillat,  2  Wash.  C.  C.  (U.  S.)  132,  Fed.  Gas. 
No.  3,828;  Shoenfeld  v.  Fleisher,  73  111.  404;  Sawyer  v.  Mayhew, 
51  Me.  398. 

So,  if  an  agent  of  an  insurance  company  fails  to  cancel  a  policy 
as  directed,  he  is  liable  to  the  company  for  the  amount  it  is  com- 
pelled to  pay  thereon.  Franklin  Ins.  Co.  v.  Sears  (a  0.)  21  Fed. 
290;  Phoenix  Ins.  Co.  v.  Frissell,  142  Mass.  513,  8  N.  E.  348. 

i«  Bertram  v.  Godfrey,  1  Knapp,  P.  C.  381. 

i»  Lilley  v.  Doubleday,  1  Q.  B.  D.  510. 

But  where  a  factor  neglected  to  sell  cotton  within  a  reasonable 


400  DUTIES  OF  AGENT  TO  PRINCIPAL*  (Ch.  15 

t>eing  directed  to  ship  goods  by  a  designated  carrier  or  at  a 
certain  time,  ships  by  another  carrier  or  at  another  time,18 
and  the  goods  are  lost  or  destroyed  while  in  the  custody  of 
the  warehouseman  or  carrrier,  the  agent  is  liable  for  their 
value.  If  an  agent,  being  directed  to  forward  a  claim  to  a 
certain  person  for  collection,  sends  it  to  another  person,  he 
thereby  renders  himself  liable  for  any  resulting  loss.19  If  an 
agent,  being  instructed  to  remit  money  by  draft,  sends  the 
money  in  a  letter,  which  is  lost,80  or,  being  instructed  to 
send  the  money  by  express,  remits  by  check,  which  becomes 
worthless  by  insolvency  of  the  maker,21  the  agent  is  liable 
for  the  loss.  If  an  agent,  'being  ordered  to  sell  for  cash, 
sells  on  credit  or  accepts  a  check  or  note  in  payment,  he  as- 
sumes responsibility  for  collection  of  the  indebtedness.22  If 
an  agent  is  authorized  to  sell  goods  for  a  certain  price  and 
sells  for  a  less  price,28  or  is  authorized  to  sell  goods  in  one 
lot  and  sells  a  part,24  he  is  liable  for  the  resulting  loss. 

time  after  being  instructed  to  sell,  and  it  was  destroyed  by  fire, 
the  delay  was  not  the  proximate  cause  of  the  loss.  Lehman  T. 
Pritchett,  84  Ala.  512,  4  South.  601. 

"Wilts  v.  Morrell,  66  Barb.  (N.  Y.)  511, 

i»  Butts  v.  Phelps,  79  Mo.  302. 

«o  Foster  v.  Preston,  8  Cow.  (N.  Y.)  19S;  Kerr  v.  Cotton,  23  Tex. 
411. 

«i  Walker  v.  Walker,  5  Heisk.  (Tenn.)  425. 

12  Wiltshire  v.  Sims,  1  Camp.  258;  Pope  v.  Westacott  [1894]  1 
Q.  B.  272;  Bliss  v.  Arnold,  8  Vt.  252,  30  Am.  Dec.  467;  Clark  v. 
Roberts,  26  Mich.  506;  Harlan  v.  Ely,  68  Cal.  522,  9  Pac.  947. 
And  see  notes  9  and  10,  supra. 

23  Duf resue  v.  Hutchinson,  3  Taunt  117;  Sarjeant  v.  Blunt,  16 
Johns.  (N.  Y.)  74. 

If  the  agent  shows  that  at  the  time  of  sale  and  ever  since  the 
goods  were  worth  no  more  than  the  price  at  which  they  were  sold, 
the  principal  can  recover  only  nominal  damages.  Blot  v.  Boiceau, 

**Levison  v.  Balfour  (a  C.)  34  Fed.  382. 

Whether  an  order  to  buy  100  bales  of  cotton  must  be  executed  as 
a  whole  turns  upon  the  meaning  in  which  the  order  is  to  be  under- 
stood in  the  light  of  the  circumstances.  Johnston  v.  Kershaw,  L. 
R.  2  Ex.  82. 


§  105)  DUTY  TO  OBEY   INSTRUCTIONS.  401 

Same — Liability  for  Conversion. 

If  an  agent  parts  with  the  possession  of  his  principal's 
goods  contrary  to  his  instructions,  he  may  be  liable  for  con- 
version as  well  as  in  contract."  Thus,  where  an  agent,  who 
had  received  a  note  for  negotiation  with  instructions  not  to 
let  it  go  out  of  his  reach  without  receiving  the  money,  de- 
livered it  to  another  to  get  it  discounted,  who  appropriated 
the  avails,  it  was  held  that  the  agent  was  liable  for  conver- 
sion.26 So,  when  a  factor  in  Buffalo  was  directed  to  sell 
wheat  at  a  specified  price  on  a  particular  day,  or  to  ship  it  to 
New  York,  and  did  not  sell  or  ship  on  that  day,  but  sold  it 
on  the  next  day  at  the  price  named,  it  was  held  that  the  sale 
was  a  conversion.27  On  the  other  hand,  it  is  held  that  an 
agent  is  not  liable  in  trover  for  selling  goods  at  a  price  be- 
low instructions.*8  "The  result  of  the  authorities,"  said 
Savage,  C.  J.,2B  "is  that,  if  the  agent  parts  with  the  property 
in  a  way  or  for  a  purpose  not  authorized,  he  is  liable  for  a 

3  N.  Y.  78,  51  Am.  Dec.  345;   Frothingham  v.  Everton,  12  N.  H.  239; 
Dalby  T.  Stearns,  132  Mass.  230. 

But  in  Switzer  v.  Oonnett,  11  Mo.  88,  it  was  held  that  the  agent 
Is  responsible  to  the  principal  for  the  price  fixed.  Reynolds  v. 
Rogers.  63  Mo.  17. 

The  measure  of  damages  in  an  action  against  a  broker  for  selling 
stocks  in  violation  of  orders  Is  the  highest  intermediate  value  be- 
tween the  sale  and  a  reasonable  time  after  the  owner  has  received 
notice  of  it  to  enable  him  to  replace  the  stocks.  Galigher  v.  Jones, 
129  U.  S.  192,  9  Sup.  OL  335,  32  L.  Ed.  658.  See  Sedgwick,  Dam. 
\  822. 

Where  an  agent  converts  money  which  he  Is  directed  to  Invest 
In  a  particular  security,  which  subsequently  acquires  great  value, 
he  is  accountable  for  the  value  of  such  article.  Short  v.  Skipwith. 
1  Brock.  103,  Fed.  Cas.  No.  12,809. 

«  Seyds  v.  Hay,  4  T.  R.  260;  Spencer  v.  Blackman,  9  Wend. 
(N.  Y.)  167;  Farrand  v.  Hurlbut,  7  Minn.  477  (Gil.  383). 

*•  Laverty  v.  Snethen,  68  N.  Y.  523,  23  Am.  Rep.  184. 

*T  Scott  v.  Rogers,  31  N.  Y.  676. 

»s  Dufresne  v.  Hutchinson,  3  Taunt  117;  Sarjeant  v.  Blunt,  16 
Johns.  (N.  Y.)  74. 

»  Laverty  v.  Snethen,  68  N.  Y.  523,  23  Am.  Rep.  184. 
THT.P.&  A.— 26 


402  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

conversion,  but  if  he  parts  with  it  in  accordance  with  his 
authority,  although  at  a  less  price,  *  *  *  he  is  not  liable 
for  a  conversion  of  the  property,  but  only  in  an  action  on 
the  case  for  misconduct." 

Gratuitous  Agent. 

A  person  who  has  undertaken  gratuitously  to  perform  an 
act  on  behalf  of  another  is  not  bound  to  perform  it,  for  his 
promise  is  without  consideration.  But,  although  he  is  not 
liable  for  nonfeasance,  he  is  liable  for  misfeasance.80  If  he 
enters  upon  performance,  he  thereby  impliedly  undertakes 
and  is  bound  to  adhere  to  his  instructions,  and  if  he  departs 
from  them  he  is  liable  to  the  principal  for  any  resulting  loss.81 

Justification  for  Failure  to  Obey  Instructions — Emergency — 
Impossibility. 

In  cases  of  unforeseen  emergency  and  extreme  necessity 
the  agent  may  be  justified  in  departing  from  his  instruc- 
tions, upon  the  ground  that  the  instructions  are  not  appli- 
cable to  the  emergency,  and  that  authority  is  to  be  implied 
to  act,  in  the  exercise  of  a  sound  discretion,  as  the  occasion 
demands.82 

Thus,  if  goods  are  perishable,  and  are  in  immediate  danger 

*o  Wilkinson  v.  Ooverdale,  1  Esp.  75;  Balfe  v.  West,  13  0.  B. 
466;  Dartnall  v.  Howard,  4  B.  &  C.  345;  Thome  v.  Deas,  4  Johns. 
(N.  Y.)  84;  Smedes  v.  Bank,  20  Johns.  (N.  Y.)  372,  380;  post,  p.  410. 

«i  Walker  v.  Smith,  1  Wash.  O.  C.  (U.  S.)  152,  Fed.  Gas.  No. 
17,086;  Short  v.  Skipwith,  1  Brock.  (U.  S.)  103,  Fed.  Gas.  No.  12,809; 
Williams  v.  Higgins,  30  Md.  404;  Passano  v.  Acosta,  4  La.  26, 
23  Am.  Dec.  470;  Opie  v.  Serrill,  6  Watts  &  S.  (Pa.)  264;  Spencer 
v.  Towles,  18  Mich.  9;  Jenkins  v.  Bacon,  111  Mass.  373,  15  Am. 
Rep.  33;  Lyon  v.  Tarns,  11  Ark.  189. 

If  a  person  undertakes,  even  gratuitously,  to  invest  money  for 
another,  and  disregards  his  instructions  as  to  the  specific  character 
of  the  security,  he  is  liable  if  the  investment  fails.  Williams  v. 
Higgins,  supra. 

82  Forrestier  v.  Bordman,  1  Story  (TJ.  S.)  43,  Fed.  Gas.  No.  4,945; 
Judson  v.  Sturges,  5  Day  (Conn.)  556;  Dusar  v.  Perit,  4  Bin.  (Pa.) 
361;  Greenleaf  v.  Moody,  13  Allen  (Mass.)  363;  Bernard  v.  Maury, 
20  Grat  (Va.)  434;  Foster  v.  Smith,  2  Cold.  (Tenn.)  474,  88  Am. 


§  105)  DUTY  TO  OBEY  INSTRUCTIONS.  403 

of  deterioration,  and  a  sale  is  necessary  to  prevent  a  total 
or  a  partial  loss,  and  there  is  no  opportunity  to  communicate 
with  the  principal,  the  agent  may  deviate  from  his  instruc- 
tions as  to  the  time  or  price  of  sale.88  So,  an  agent  in- 
structed to  place  funds  or  property  in  a  certain  place,  if  there 
is  reasonable  ground  of  apprehension  for  their  safety  if  so 
deposited,  may  be  justified  in  depositing  them  elsewhere.8* 

A  fortiori,  if  without  the  agent's  fault  performance  be- 
come impossible,  he  will  be  excused  for  failure  to  comply 
with  his  instructions.8* 

Same — Factor — Might  to  Sell  for  Advances. 

Another  exception  exists  in  favor  of  a  factor  who  has 
made  advances.  As  a  rule  a  factor,  like  any  other  agent,  is 
bound  to  obey  the  orders  of  his  principal ;  but  if  he  has 
made  advances  on  account  of  the  consignment,  by  which  he 
acquires  a  special  property  therein,  he  has  a  right,  unless 
there  is  an  agreement  to  the  contrary,  to  sell  so  much  of 
the  goods  as  may  be  necessary  to  reimburse  such  advances 
without  regard  to  instructions,  provided  the  principal  fails 
to  repay  the  advances  upon  reasonable  notice,  and,  if  he  is 

Dec.  604;  Bartlett  v.  Sparkman,  95  Mo.  136,  8  S.  W.  406,  6  Am. 
St.  Rep.  35;  Story,  Ag.  §  193. 

Where  hay,  which  was  sent  during  the  war  to  New  Orleans  for 
sale,  was  seized  by  the  military  authorities  of  the  United  States, 
who  refused  to  pay  for  it  except  in  government  certificates  of  In- 
debtedness, which  were  worth  only  93  per  cent  of  their  face 
value,  and  the  consignees,  without  communicating  with  the  con- 
signors, but  according  to  the  custom  of  factors  there,  accepted  the 
certificates  and  afterwards  sold  them,  it  was  held  that  their  con- 
duct was  justified.  Greenleaf  v.  Moody,  supra. 

»3  Jarvis  v.  Hoyt,  2  Hun  (N.  Y.)  637. 

But,  where  a  cargo  of  wheat  sank  in  three  feet  of  water,  the 
agent,  although  authorized  to  employ  means  to  save  it,  had  no 
authority  to  sell  it  Foster  r.  Smith,  2  Cold.  (Tenn.)  474,  88  Am. 
Dec.  604. 

«*  Drummond  v.  Wood,  2  Caines  (X.  Y.)  310. 

»B  Weakley  v.  Pearce,  5  Heisk.  (Tenn.)  401;  Greenleaf  v.  Moody, 
13  Allen  (Mass.)  3(53.  Cf.  Milbank  v.  Dennistoun,  21  N.  Y.  3SG. 


404  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

directed  to  make  a  sale  at  a  time  or  for  a  price  which  would 
impair  his  security,  he  may  refuse  to  obey  the  instructions 
to  sell.86 

Same — Illegal  Act. 

If  the  instructions  require  the  agent  to  perform  an  illegal 
or  immoral  act,  he  is  not  liable  for  failure  to  perform  it,  for 
the  very  agreement  to  perform  such  an  act  is  void.87  Upon 
much  the  same  principle,  if  an  agent  is  employed  to  make 
a  contract  for  his  principal  which  would  be  void  for  illegality, 
the  agent  is  not  liable  for  failure  to  make  the  contract,  since 
the  principal  could  have  acquired  no  rights  under  it,  and 
consequently  suffers  no  legal  damage  by  the  fact  that  it  was 
not  made.88 

Ambiguous  Instructions. 

If  the  instructions  are  ambiguous,  so  as  to  be  susceptible 
of  two  meanings,  and  the  agent  complies  with  them  accord- 
ing to  his  understanding  of  their  meaning,  he  is  not  liable 
for  failure  to  understand  them  as  the  principal  intended  and 
to  act  according  to  that  understanding.89 

««  Brown  v.  McGran,  14  Pet.  (U.  S.)  479,  10  L.  Ed.  550;  Feild  v. 
Farrington,  10  Wall.  (U.  S.)  141,  19  L.  Ed.  923;  Parker  v.  Brancker, 
22  Pick.  (Mass.)  40;  Frothingham  v.  Everton,  12  N.  H.  239;  Mar- 
field  v.  Goodhue,  3  N.  Y.  62;  Hilton  v.  Vanderbilt,  82  N.  Y.  591; 
Weed  v.  Adams,  37  Conn.  378;  Phillips  v.  Scott,  43  Mo.  86,  97  Am. 
Dec.  309;  Davis  v.  Kobe,  36  Minn.  214,  30  N.  W.  662,  1  Am.  St. 
Rep.  663;  Lockett  v.  Baxter,  3  Wash.  T.  350,  19  Pac.  23. 

Contra,  Smart  v.  Bandars,  5  C.  B.  895;  De  Comas  v.  Prost,  3 
Moore,  P.  C.  (N.  S.)  158;  ante,  p.  223. 

ST  Brexell  v.  Christie,  Cowp.  395;  Webster  v.  De  Taset,  7  T.  R. 
157.  See  Goodhue  v.  McClarty,  3  La.  Ann.  56. 

ss  Cohen  v.  Kittel,  22  Q.  B.  D.  680;  Webster  v.  De  Taset,  7  T. 
R.  157. 

so  De  Tastett  v.  Crousillat,  2  Wash.  C.  C.  (U.  S.)  132,  Fed.  Cas. 
No.  3,828;  Loraine  v.  Cartwright,  3  Wash.  C.  C.  (U.  S.)  151,  Fed. 
Cas.  No.  8,500;  Courcier  v.  Ritter,  4  Wash.  0.  C.  (U.  S.)  549,  Fed. 
Oas.  No.  3,282;  Pickett  v.  Pearsons,  17  Vt  470;  Bessent  v.  Harris, 
63  N.  C.  542;  Minnesota  Linseed  Oil  Co.  v.  Montague,  65  Iowa,  67, 
21  N.  W.  184;  ante,  p.  173. 


§  106)      DUTY  TO  EXERCISE  SKILL,  CARE,  AND  DILIGENCE.       405 


SAME— DUTY   TO   EXERCISE    SKILL,    CARE,   AND    DIL- 
IGENCE. 

106.  It  is  the  duty  of  the  agent  to  exercise  in  the  performance 
of  the  agency  snch  skill,  care,  and  diligence  as  the 
nature  of  his  undertaking,  to  be  inferred  from  all  the 
circumstances  of  the  case,  reasonably  demands,  and  if 
he  fails  to  do  so  he  is  liable  in  damages  for  any  re- 
sulting loss. 

The  duty  of  the  agent  to  be  skillful,  careful,  and  diligent  is 
closely  connected  with  his  duty  to  obey  instructions.  By 
accepting  the  appointment  the  agent  impliedly  undertakes 
that  he  will  exercise  reasonable  skill,  care,  and  diligence  in 
the  performance  of  the  agency.  As  a  rule,  it  may  be  said 
that,  where  an  agent  receives  compensation"  for  his  services, 
that  degree  of  skill,  care,  and  diligence  is  required,  and  suf- 
fices, which  is  ordinarily  exercised  by  persons  of  common 
capacity  and  prudence  engaged  in  similar  transactions.1  It 
is  obvious,  however,  that  the  degree  of  skill,  care,  and  dili- 
gence which  is  reasonable,  and  for  which  the  agent  under- 
takes, is  a  question  of  fact,  depending,  not  only  upon  the 
nature  of  the  act  to  be  performed,  but  upon  all  the  circum- 
stances of  the  case  from  which  the  mutual  understanding  of 
the  parties  and  the  undertaking  of  the  agent  are  to  be  in- 
ferred, such  as  the  instructions  communicated,  the  usages 
of  trade  and  the  customs  of  the  particular  business,  the 
previous  course  of  dealing  between  the  parties,  and  the  de- 
gree of  skill  which  the  agent  professes.9  Thus,  if  the  trans- 

§  106.  i  Varnum  v.  Martin,  15  Pick.  (Mass.)  440;  Holmes  v. 
Peck,  1  R.  I.  242;  Gaither  v.  Myrick,  9  Md.  118,  66  Am.  Dec.  316; 
Heinemann  v.  Heard,  50  N.  Y.  35;  Whitney  v.  Marline,  88  N.  Y. 
535;  Wright  v.  Banking  Co.,  16  Ga.  38;  Steiner  v.  Clisby,  103 
Ala.  181,  15  South.  612;  Lake  City  Flouring-Mill  Co.  v.  McVean, 
32  Minn.  301,  20  N.  W.  233;  Kepler  v.  Jessup,  11  Ind.  App.  241,  37 
K.  E.  655;  Isham  v.  Parker,  3  Wash.  St.  755,  29  Pac.  835. 

2  Solomon  v.  Barker,  2  F.  &  F.  726;  Stimpson  v.  Sprague,  6 
Greenl.  (Me.)  470;  Wilson  v.  Russ,  20  Me.  421;  Page  v.  Wells,  37 
Mich.  415;  Stevens  v.  Walker,  55  111.  151;  Johnson  v.  Martin,  11 
La.  Ann.  27,  66  Am.  Dec.  193. 


406  DUTIES  OF  AGENT  TO  PRINCIPAL.         (Ch.  15 

action  is  of  a  nature  to  require  expert  skill  and  knowledge, 
the  agent  impliedly  undertakes,  if  there  is  nothing  to  indi- 
cate a  different  understanding,  that  he  will  exercise  the  skill 
and  knowledge  of  an  expert,  and  a  decree  of  care  and  dili- 
gence based  upon  the  skill  and  knowledge  of  an  expert.3  On 
the  other  hand,  if  the  agent  is  not  and  does  not  profess  to 
be  an  expert,  and  the  principal,  knowing  that  fact,  never- 
theless sees  fit  to  employ  him,  no  undertaking  to  exercise 
the  skill  and  knowledge  of  an  expert  can  be  implied,  nor 
will  the  agent  be  held  to  a  higher  standard  of  performance 
than  that  upon  which  the  principal  has  reason  to  rely.4  This 
subject  will  be  further  discussed  in  considering  the  duties 
in  this  respect  of  gratuitous  agents,  which,  although  often 
affected  by  the  circumstance  that  such  agents  serve  with- 
out reward,  are  to  be  determined  by  the  application  of  the 
same  principles. 
It  follows  that,  if  the  agent  has  exercised  reasonable  skill, 

» Park  v.  Hamond,  4  Camp.  344;  Godefroy  v.  Dalton,  6  Bing. 
460;  Lee  v.  Walker,  L.  R.  7  0.  P.  121;  Stanton  y.  Bell,  9  N.  C.  145, 
11  Am.  Dec.  744;  Varnum  v.  Martin,  15  Pick.  (Mass.)  440;  Stimp- 
son  v.  Sprague,  6  Greenl.  (Me.)  470;  Orooker  v.  Hutchinson,  1  Vt. 
73;  Holmes  v.  Peck,  1  R.  I.  242;  Leighton  v.  Sargent,  27  N.  H.  460, 
59  Am.  Dec.  388  (physician);  McFarland  v.  McClees  (Pa.)  5  Atl.  50. 

A  money  lender  by  his  business  holds  himself  out  as  possessing 
competent  skill  to  determine  what  reasonable  care  and  prudence 
requires  in  lending  for  another.  McFarland  v.  McClees,  supra. 

Where  an  insurance  broker  was  informed  that  goods  on  which 
he  was  instructed  to  effect  a  policy  were  loaded  at  a  prior  port 
from  that  from  which  the  risk  was  to  commence,  he  was  liable 
for  effecting  a  policy  in  common  form  "beginning  the  adventure 
*  *  *  from  the  loading,"  since  such  a  policy  attached  only  on 
goods  loaded  at  the  port  which  was  the  terminus  a  quo  of  the  risk. 
"Insurance  brokers  are  bound,"  said  Gibbs,  C.  J.,  "to  know  that 
this  is  the  law,  and  to  act  accordingly  for  the  benefit  of  their  em- 
ployers. They  are  expected  to  display  competent  skill  as  well  as 
diligence  in  their  business."  Park  v.  Hamond,  supra. 

*  Small  v.  Howard,  128  Mass.  131,  35  Am.  Rep.  363;  Felt  v. 
School  Dist,  24  Vt.  297. 

"A  metropolitan  standard  is  not  to  be  applied  to  a  rural  bar." 
Weeks,  Attys.  §  289. 


§  106)      DUTT  TO  EXERCISE  SKILL,  CAEE,  AND  DILIGENCE.       407 

care,  and  diligence,  he  is  not  responsible  for  the  consequences 
of  his  acts  or  omissions,  although  they  result  in  loss  which 
the  exercise  of  a  higher  degree  of  these  qualities  might  have 
prevented.  He  is  not  an  insurer.  If  he  has  not  been  negli- 
gent, he  is  not  liable  for  the  loss  of  property  by  theft  or 
fire.5  In  matters  left  to  his  discretion,  if  he  has  acted  in 
good  faith  and  with  reasonable  care,  he  is  not  responsible 
for  mere  errors  of  judgment.6 

Same — Liability  for  Negligence — Damages. 

Substantially  the  same  rules  in  respect  to  the  damages 
recoverable  by  the  principal  are  applicable  in  an  action  for 
negligence  as  in  an  action  for  failure  to  obey  instructions.7 
In  other  words,  the  measure  of  damages  is  the  amount  of 
the  loss  naturally  and  proximately  resulting  from  the  breach 
of  duty.8 

Same — Illustrations. 

A  consideration  in  detail  of  what  constitutes  negligence 
upon  the  part  of  different  classes  of  agents,  such  as  factors, 
brokers,  and  attorneys,  would  involve  a  fuller  discussion  of 
the  peculiar  duties  imposed  upon  them  by  law  or  custom 
than  is  within  the  scope  of  this  book.  A  few  examples  will 
be  enough  to  illustrate  the  foregoing  principles.  An  agent 

•  Johnson  v.  Martin,  11  La.  Ann.  27,  66  Am.  Dec.  193;   Furber  v. 
Barnes,  32  Minn.  105,  19  N.  W.  728. 

6  Milbank  v.  Dennistoun,  21  N.  Y.  386;  Mclaughlin  v.  Simpson, 
3  Stew.  &  P.  (Ala.)  85;  Long  v.  Pool,  68  N.  C.  479;  Getting  v. 
Scudder,  71  111.  86;  Stewart  v.  Parnell,  147  Pa.  523,  23  Atl.  838. 

i  Ante,  p.  398. 

•  Whiteman  v.  Hawkins,  4  O.  P.  D.  13;    Neilson  v.  James,  9  Q. 
B.  D.  546;    Cassaboglou  v.  Gibb,  9  Q.  B.  D.  220;    Bell  v.  Cunning- 
ham, 3  Pet  (TJ.  S.)  69,  7  L.  Ed.  606;   Ashley  v.  Root,  4  Allen  (Mass.) 
504;    Mobile  Bank  v.  Huggins,  3  Ala.  206;    Ryder  v.  Thayer,  3  La. 
Ann.  149. 

An  agent  charged  with  the  disbursement  of  funds  is  not  liable 
for  any  loss  occurring  through  his  negligence,  if  the  exercise  of  rea-* 
sonable  care  by  the  principal  would  have  prevented  the  loss.  Sioux 
City  &  P.  R.  Co.  v.  Walker,  49  Iowa,  273. 


408  DUTIES  OF  AGENT  TO  PRINCIPAL.  [Ch.  15 

instructed  to  insure  must  effect  insurance  within  a  reasonable 
time,  or  notify  his  principal  of  his  inability  to  do  so,  and 
must  use  reasonable  care  in  selecting  a  sufficient  insurer  and 
in  securing  a  sufficient  policy;  and  if  he  fails  in  his  duty  in 
this  regard  he  is  liable  to  the  same  extent  as  the  underwriters 
would  have  been  had  the  insurance  been  duly  effected."  An 
agent  authorized  to  invest  must  use  reasonable  care  in  se- 
lecting adequate  security.10  An  agent  authorized  to  sell  on 
credit  must  use  reasonable  care  to  select  a  responsible  pur- 
chaser.11 An  agent  instructed  to  collect  a  claim  must  use 
reasonable  diligence  in  demanding  and  enforcing  payment, 
and  is  liable  for  the  amount  if  by  his  neglect  it  is  lost  to  the 
principal.12  In  the  case  of  commercial  paper,  he  must  take 
all  requisite  steps  to  secure  and  preserve  the  rights  of  his 
principal  against  the  various  parties  to  the  instrument,  and 
must  make  due  presentment  for  acceptance  or  payment,  pro- 
test and  give  notice  of  dishonor,  as  the  circumstances  may 
require.18  After  collection  the  agent  must  use  reasonable 
diligence  in  remitting  the  proceeds.14  It  is  the  duty  of  a 
factor  to  whom  goods  are  consigned  for  sale  without  instruc- 

•  Mallough  v.  Barber,  4  Camp.  150;  Park  v.  Hamond,  4  Camp. 
344;  Turpin  v.  Bilton,  5  M.  &  G.  455;  Maydew  v.  Forrester,  5 
Taunt.  615  (omitting  to  communicate  material  letter  to  underwrit- 
ers); De  Tastett  v.  Crousillat,  2  Wash.  C.  C.  (U.  S.)  132,  Fed.  Gas. 
No.  3,828;  Strong  v.  High,  2  Rob.  (La.)  103,  38  Am.  Dec.  195. 

10  Whitney  v.  Martine,  88  N.  Y.  535;  Bank  of  Owensboro  v. 
Bank,  13  Bush  (Ky.)  526,  26  Am.  Rep.  211;  Bannon  v.  Wariield, 
42  Md.  22;  McFariand  v.  McClees  (Pa.)  5  Atl.  50. 

"  Greely  v.  Bartlett,  1  Greenl.  (Me.)  172,  10  Am.  Dec.  54;  Phillips 
v.  Moir,  69  111.  155;  Frick  &  Co.  v.  Lamed,  50  Kan.  776,  32  Pac. 
383. 

12  Allen  v.  Suydham,  20  Wend.  (N.  Y.)  321,  32  Am.  Dec.  555; 
First  Nat.  Bank  v.  Bank,  77  N.  Y.  320,  33  Am.  Rep.  618;  Reed 
v.  Northrup,  50  Mich.  442,  15  N.  W.  543. 

"  Allen  v.  Bank,  22  Wend.  (N.  Y.)  215,  34  Am.  Dec.  289;  First 
Nat.  Bank  v.  Bank,  77  N.  Y.  320,  33  Am.  Rep.  618;  Chapman  v. 
McCi-ea,  63  Ind.  360. 

14  Morgan  v.  Richardson,  13  Allen  (Mass.)  410;  Buell  v.  Chapin, 
99  Mass.  594,  97  Am.  Dec.  58. 


§  106)      DUTY  TO  EXERCISE  SKILL,  CARE,  AND  DILIGENCE.       409 

tions  as  to  the  time  of  sale  or  the  price  to  exercise  a  reason- 
able discretion  in  the  sale,  and  if  he  does  so  his  duty  is  per- 
formed; 1B  but  if  he  sells  for  a  less  price  than  he  might  with 
reasonable  care  and  diligence  have  obtained,16  or  if  he  fails 
to  sell  within  a  reasonable  time  and  the  price  of  the  goods 
falls,17  he  is  liable  for  the  loss. 

The  extent  of  the  obligation  imposed  upon  the  agent  by 
his  duty  to  use  reasonable  skill  is  well  illustrated  by  cases 
involving  the  responsibility  of  attorneys  to  their  clients. 
An  attorney  is  liable  to  his  client  for  any  loss  resulting  from 
failure  to  possess  and  to  apply  with  reasonable  care  and 
diligence  to  the  matter  in  hand  a  reasonable  knowledge  of 
the  law.  He  is  required  to  have  at  least  as  great  knowledge 
as  is  ordinarily  possessed  by  attorneys  of  good  standing  en- 
gaged in  similar  transactions.18  "On  the  other  hand,  he  is 
not  answerable  for  error  in  judgment  upon  points  of  new 
occurrence  or  nice  or  doubtful  construction."  *• 

IB  Marfield  v.  Goodhue,  3  N.  Y.  72;  Conway  v.  Lewis,  120  Pa. 
215,  13  Atl.  826,  6  Am.  St.  Rep.  700;  Given  v.  Lemoine,  35  Mo.  110. 

i«  Bigelow  v.  Walker,  24  Vt.  149,  58  Am.  Dec.  156. 

"  Atkinson  v.  Burton,  4  Busb   (Ky.)  299. 

is  Godefroy  v.  Dalton,  6  Bing.  460;  Wilson  v.  Russ,  20  Me.  421: 
Holmes  v.  Peck,  1  R.  I.  242;  O'Barr  v.  Alexander,  37  Ga.  195; 
Stevens  v.  Walker,  55  111.  151;  Kepler  v.  Jessup,  11  Ind.  App.  241, 
37  N.  E.  655;  Isham  v.  Parker,  3  Wash.  St  755,  29  Pac.  835;  Jami- 
son v.  Weaver,  81  Iowa,  212,  46  X.  W.  996. 

"He  is  liable  for  the  consequences  of  ignorance  or  nonobservance 
of  the  rules  of  practice  of  this  court,  for  want  of  care  in  the  prepara- 
tion of  the  cause  for  trial,  or  of  attendance  thereon  with  his  wit- 
nesses, and  for  the  mismanagement  of  so  much  of  the  conduct  of 
a  cause  as  is  usually  and  ordinarily  allowed  to  his  department  of 
the  profession."  Godefroy  v.  Dalton,  supra,  per  Tlndal,  C.  J. 

i»  Godefroy  v.  Dalton,  6  Bing.  460;  Montrion  v.  Jeffrys,  2  a  & 
P.  113;  Watson  v.  Muirhead,  57  Pa.  161,  98  Am.  Dec.  213;  Citizens' 
Loan  Fund  &  Savings  Ass'n  v.  Friedley,  123  Ind.  143,  23  N.  E.  1075, 
7  L.  R.  A.  669,  18  Am.  St.  Rep.  320;  Marsh  v.  Whitmore,  21  Wall. 
(U.  S.)  178,  22  L.  Ed.  482.  See  Barrows,  Neg.  371  et  seq. 


410  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  3  5 

Gratuitous  Agent. 

Although  a  person  who  has  without  consideration  promised 
to  perform  an  act  on  behalf  of  another  is  not  bound  to  per- 
form it,  yet  if  he  enters  upon  performance  he  is  bound  to 
conform  to  the  authority  20  and  to  exercise  a  certain  degree 
of  skill  and  care.  Or,  as  it  is  usually  put,  he  is  not  liable 
for  nonfeasance,  but  he  is  liable  for  misfeasance.  The  ground 
of  this  liability  is  somewhat  obscure.21  Where  the  principal 
delivers  over  to  an  agent  something  which  is  the  subject 
of  the  agency,  it  is  perhaps  possible  to  find  a  consideration 
in  the  detriment  which  the  principal  suffers  by  parting  with 
the  control ;  22  but  in  many  cases  this  element  of  consid- 
eration, if  such  it  be,  does  not  exist.  It  has  sometimes  been 
said  that  if  the  agent  enters  upon  performance,  the  trust  and 
confidence  reposed  is  a  sufficient  consideration  for  his  under- 
taking ; 28  but,  if  trust  and  confidence  were  to  be  deemed 
a  consideration,  trust  and  confidence  reposed  would  be  a 
sufficient  consideration  for  a  promise  to  perform,  and  render 
the  agent  liable  for  nonfeasance.  It  must  be  admitted  that 
the  responsibility  of  the  gratuitous  agent  arises  independently 
of  any  consideration  to  support  his  undertaking.  Never- 
theless it  seems  that  the  trust  and  confidence  reposed,  al- 
though not  to  be  regarded  as  a  consideration,  is  the  founda- 
tion of  the  agent's  duty — a  duty  which  the  law  imposes  upon 
other  persons  besides  agents  if  they  see  fit  so  to  enter  upon 
the  performance  of  gratuitous  undertakings.24  "It  is  well 
settled,"  said  Ames,  J.,  in  a  case  in  which  a  landlord  who 

20  Ante,  p.   18.  21  See  Anson,  Contr.  333. 

22  Coggs  v.  Bernard,  2  Ld.  R.  909;  Whitehead  v.  Greetham,  2 
Bing.  464. 

zs  Hammond  v.  Hussey,  51  N.  H.  40,  12  Am.  Rep.  41. 

24  Stanton  v.  Bell,  9  N.  C.  145,  153,  11  Am.  Dec.  744;  Benden,  v. 
Manning,  2  N.  H.  289;  Philadelphia  &  Reading  R.  Co.  v.  Derby,  14 
How.  (U.  S.)  468,  485,  14  L.  Ed.  502;  Gill  v.  Middleton,  105  Mass.  477, 
7  Am.  Rep.  548. 

"And  therefore  when  I  have  reposed  a  trust  in  you  upon  your  un- 
dertaking, if  I  suffer,  when  I  have  so  relied  upon  you,  I  shall  have 
my  action."  Per  Powell,  J.,  in  Coggs  v.  Bernard,  2  Ld.  R.  909. 


§  106)      DUTY  TO  EXERCISE  SKILL,  CARE,  AND  DILIGENCE.       411 

had  gratuitously  undertaken  to  make  repairs  was  held  liable 
for  personal  injuries  to  the  tenant,  resulting  from  failure  to 
use  ordinary  care  and  skill  in  making  them,  "that,  for  an  in- 
jury occasioned  by  want  of  due  care  and  skill  in  doing  what 
one  has  promised  to  do,  an  action  may  be  maintained  against 
him  by  the  party  relying  on  such  promise  and  injured  by 
the  breach  of  it,  although  there  was  no  consideration  for  the 
promise."  25  The  scope  of  the  agent's  duty  and  the  degree 
of  skill  and  care  demanded  of  him  are  to  be  measured  by  the 
nature  and  degree  of  the  confidence  and  trust  which,  under 
the  circumstances  of  the  case,  the  principal  is  justified  in 
reposing,  or,  in  other  words,  by  the  degree  of  skill  and  care 
which  the  agent  by  reasonable  implication  undertakes  to 
use.28 

It  has  from  early  times  been  laid  down  that  a  gratuitous 
agent,27  or  bailee,28  is  liable  only  for  gross  negligence.  Yet 
it  has  not  been  questioned  that  the  degree  of  skill  and  care 
demanded  depends  upon  the  circumstances  of  the  particular 
case,  and  that  failure  to  exercise  the  degree  of  skill  and  care 
demanded  is  actionable  negligence.28  Judges  and  writers 

»B  Gill  v.  Middleton,  105  Mass.  477,  7  Am.  Rep.  548. 

26  See  "Gratuitous  Undertakings,"  by  Joseph  H.  Beale,  Jr.,  5  Harv. 
L.  R.  222. 

27  Shiells  v.  Blackburne,  1  H.  Bl.  159;  Stanton  v.  Bell,  9  N.  C. 
145,  11  Am.  Dec.  744;    Hammond  v.  Hussey,  51  N.  H.  40,  12  Am. 
Rep.  41;   Grant  v.  Ludlow,  8  Ohio  St.  1;  Eddy  v.  Livingston,  35  Mo. 
487.  88  Am.  Dee.  122;  Lyon  v.  Tarns,  11  Ark.  189;   Stewart  v.  Butts, 
45  111.  App.  512. 

as  Coggs  v.  Bernard,  2  Ld.  R.  909;  Giblin  v.  McMullen,  L.  R.  2 
P.  C.  317;  Tracy  v.  Wood,  3  Mason  (U.  S.)  132,  Fed.  Gas.  No.  14,130; 
Foster  v.  Bank,  17  Mass.  479,  9  Am.  Dec.  168;  Beardslee  v.  Richard- 
son, 11  Wend.  (N.  Y.)  25,  25  Am.  Dec.  59G;  Lampley  v.  Scott,  24 
Miss.  528. 

29  See  cases  cited  supra. 

"Lawrence,  being  an  agent  acting  without  compensation,  Is  liable 
only  for  gross  negligence.  To  define  what  constitutes  gross  negli- 
gence, so  as  to  rentier  the  phrase  more  intelligible  or  exact,  is  diffi- 
cult, if  not  impossible,  and  all  attempts  to  do  so  have,  it  would  seem, 
heretofore  failed.  We  are  disposed  to  regard  it  as  a  question  of  fact, 


412  DUTIES  OP  AGENT  TO  PRINCIPAL.  (Ch.  15 

to-day  agree  that  the  term  "gross  negligence"  is  misleading ; 
gross  negligence  being,  as  declared  by  Rolfe,  B.,  no  more 
than  negligence  "with  the  addition  of  a  vituperative  epi- 
thet." 80  In  this  view,  negligence  is  simply  failure  to  exercise 
that  degree  of  skill  and  care  which,  under  the  circumstances, 

to  be  determined  by  reference  to  all  the  circumstances  of  the  case, 
including  the  subject-matter  and  objects  of  the  agency,  and  the 
known  character,  qualifications,  and  relations  of  the  parties."  Per 
Brinkeihoff,  J.,  in  Grant  v.  Ludlow,  8  Ohio  St  1. 

so  Wilson  v.  Brett,  11  M.  &  W.  113.  See,  also,  Gill  v.  Middleton, 
105  Mass.  477,  7  Am.  Rep.  548;  Preston  v.  Prather,  137  TJ.  S.  604, 
11  Sup.  Ct  162,  34  L.  Ed.  788;  Isham  v.  Post,  141  N.  Y.  100,  35  N. 
E.  1084,  23  L.  R.  A.  90,  38  Am.  -St  Rep.  766. 

As  showing  how  the  degree  of  care  required  is  dependent  upon  the 
nature  of  the  undertaking,  see  Philadelphia  &  Reading  R.  Co.  v. 
Derby,  14  How.  (U.  S.)  468,  14  L.  Ed.  502,  involving  the  liability  of  a 
gratuitous  carrier  of  passengers.  "When  carriers  undertake,"  said 
Grier,  J.,  "to  convey  persons  by  the  powerful  but  dangerous  agency 
of  steam,  public  policy  and  safety  require  that  they  be  held  to  the 
greatest  possible  care  and  diligence.  *  *  *  Any  negligence  in 
such  cases  may  well  deserve  the  epithet  'gross.' " 

"In  each  case  the  negligence,  whatever  the  epithet  we  give  it,  is 
failure  to  bestow  the  care  and  skill  which  the  situation  demands, 
and  hence  it  is  more  strictly  accurate  perhaps  to  call  it  simply  negli- 
gence." New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357, 
21  L.  Ed.  627,  per  Bradley,  J. 

Similar  views  were  expressed  by  Fuller,  C.  J.,  in  Briggs  v.  Spauld- 
ing,  141  U.  S.  132,  11  Sup.  Ct.  924,  35  L.  Ed.  662,  a  case  involving 
the  liability  of  bank  directors  who  serve  without  compensation.  "In 
any  view,"  he  says,  "the  decree  of  care  to  which  these  defendants 
were  bound  is  that  which  ordinarily  prudent  and  diligent  men  would 
exercise  under  similar  circumstances,  and  in  determining  that  the 
restrictions  of  the  statute  and  the  usages  of  business  should  be  taken 
into  account"  A  severer  standard  for  bank  directors  was  laid  down 
in  Hun  v.  Gary,  82  N.  Y.  65,  71,  37  Am.  Rep.  546,  viz.:  "The  same 
degree  of  care  and  prudence  that  men  prompted  by  self-interest  gen- 
erally exercise  in  their  own  affairs."  And  see  the  dissenting  opinion 
of  Harlan,  J.,  in  Briggs  v.*  Spaulding,  supra.  On  the  other  hand,  in 
Swentzel  v.  Bank,  147  Pa.  140,  23  Atl.  405,  415,  15  L.  R.  A.  305,  30 
Am.  St.  Rep.  718,  it  was  held  that  a  gratuitous  bank  director  is 
amenable  only  for  such  gross  negligence  as  amounts  to  fraud. 


§  106)      DUTY  TO  EXERCISE  SKILL,  CARE,  AND  DILIGENCE.       413 

the  agent  undertakes  to  exercise.81  The  fact  that  the  agent 
is  unremunerated  is  but  one  of  the  circumstances  to  be  con- 
sidered, with  all  the  other  circumstances,  in  determining  the 
nature  of  his  undertaking,  and  in  very  many  cases  the  stand- 
ard of  performance  undertaken  by  gratuitous  agents  is  no 
less  high  than  that  undertaken  by  paid  agents.  Thus,  if 
an  agent  professes  skill,  he  must  exercise  skill,  whether  he  is 
paid  or  unpaid.  If  he  undertakes,  although  gratuitously, 
to  perform  an  act  within  the  line  of  his  profession  or  business, 
the  principal  is  justified  in  relying  upon  him  to  exercise  such 
skill  and  care  as  is  demanded  by  the  ordinary  standard  of 
performance  of  his  profession  or  business,  and  the  agent 
consequently  undertakes  for  that  standard  of  performance.*2 
On  the  other  hand,  a  profession  of  adequate  skill  is  more 
readily  to  be  inferred  when  the  agent  undertakes  to  serve 
for  reward  than  when  he  consents  to  serve  as  a  matter  of 
favor ;  for  the  mere  undertaking  to  serve  for  reward  implies 
prima  facie  a  profession  that  the  services  are  worth  the  re- 
ward.88 

In  every  case  an  undertaking  is  to  be  implied  that  the 
agent  will  exercise  whatever  skill  he  possesses,  for  failure 
to  do  so  would  be  failure  to  exercise  even  slight  care.34  So, 
too,  the  agent  must  use  at  least  as  great  care  as  he  takes 
in  his  own  affairs ; 85  but  his  habitual  care,  if  inadequate,  is 
not  to  be  taken  as  the  measure  of  his  undertaking,  unless 

«  "The  general  principle  that  a  mandatory  is  only  liable  for  gross 
neglect  implies  strict  fidelity  on  his  part,  and  the  exercise  of  such 
care  and  prudence  as,  with  reference  to  the  particular  subject  of  the 
bailment  and  the  circumstances  of  the  particular  case,  may  be  requi- 
site for  the  performance  of  his  undertaking."  Colyar  v.  Taylor,  1 
Cold.  (Tenn.)  372,  379;  Kirtland  v.  Montgomery,  1  Swan  (Tenn.)  452; 
5  Harv.  L.  R.  222. 

32  Shiells  v.  Blackburne,  1  H.  Bl.  159;  Benden  v.  Manning,  2  N.  H. 
289;  Williams  v.  McKay,  40  N.  J.  Eq.  189,  53  Am.  Rep.  775;  Mc- 
Nevins  v.  Lowe,  40  111.  209  (physician);  Isham  v.  Post,  141  N.  Y.  100, 
35  N.  E.  1084,  23  L.  R.  A.  90,  38  Am.  St.  Rep.  766. 

as  Ante,  p.  405.  •*  Wilson  v.  Brett,  11  M.  &  W.  113. 

»8  Shiells  v.  Blackburne,  1  H.  BL  159;  Beal  v.  South  Devon  Ry., 
3  H.  &  C.  337,  342. 


414  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

the  principal  from  his  prior  knowledge  is  not  justified  in  rely- 
ing upon  a  higher  degree  of  care. 

Notwithstanding  the  disuse  of  the  term  "gross  negligence" 
there  is,  in  effect,  little  difference  between  the  later  and  the 
earlier  cases.  Thus,  in  Shiells  v.  Blackburn,30  decided  in 
1789,  a  general  merchant  undertook  without  reward  to  enter 
at  the  custom  house  for  exportation  a  parcel  of  leather  be- 
longing to  G.,  together  with  a  parcel  of  his  own.  By  agree- 
ment with  G.  he  made  one  entry  of  both  parcels,  but  by 
mistake  entered  them  under  a  wrong  denomination,  in  con- 
sequence of  which  the  goods  were  seized.  It  was  held  that 
he  was  not  liable  for  the  loss.  "If  a  man  gratuitously  un- 
dertakes," said  Lord  Loughborough,  "to  do  a  thing  to  the 
best  of  his  skill,  where  his  situation  is  such  as  to  imply  skill, 
an  omission  of  that  skill  is  imputable  to  him  as  gross  negli- 
gence. If  in  this  case  a  shipbroker,  or  a  clerk  in  the  custom 
house,  had  undertaken  to  enter  the  goods,  a  wrong  entry 
would  in  them  be  gross  negligence,  because  their  situation 
and  employment  necessarily  imply  a  competent  degree  of 
knowledge  in  making  such  entries;  but  when  an  applica- 
tion, under  the  circumstances  of  this  case,  is  made  to  a  gen- 
eral merchant  to  make  an  entry  at  the  custom  house,  such 
a  mistake  is  not  to  be  imputed  to  him  as  gross  negligence.'' 
And  in  a  recent  case  in  New  York,37  where  a  banker  held 
himself  out  as  dealing  in  choice  stocks,  and  promised  his 
customers  careful  attention  in  all  financial  transactions,  it 
was  held  that  he  was  bound  to  exercise  the  skill  and  knowl- 
edge of  a  banker  engaged  in  loaning  money  for  himself  and 
his  customers,  although  his  services  were  rendered  without 
compensation.  "It  does  not  follow,"  said  the  court,  "that 
the  banker  was  freed  from  the  obligation  of  such  diligence 
as  he  had  promised  to  those  who  dealt  with  him,  or  was 
at  liberty  to  withhold  from  his  agency  the  exercise  of  the 

«o  i  H.  Bl.  159. 

87  Isham  v.  Post,  141  N.  T.  100,  35  N.  E.  1084,  23  L.  R.  A.  90,  38 
Am.  St.  Rep.  766. 


§  107)  DUTY   TO   ACT  IN   GOOD   FAITH.  415 

skill  and  knowledge  which  he  held  himself  out  to  possess. 
Nothing,  in  general,  is  more  unsatisfactory  than  attempts  to 
define  and  formulate  the  different  degrees  of  negligence ;  but, 
even  where  the  neglect  which  charges  the  mandatory  is  de- 
scribed as  'gross/  it  is  still  true  that,  if  his  situation  or  employ- 
ment implies  ordinary  skill  or  knowledge  adequate  to  the 
undertaking,  he  will  be  responsible  for  any  losses  or  injuries 
resulting  from  the  want  of  the  exercise  of  such  skill  or  knowl- 
edge." 

SAME— DUTY  TO  ACT  IN  GOOD  FAITH. 

1O7.  It  I*  the  duty  of  the  agent  to  exercise  good  faith  and 
loyalty  toward  the  principal  in  the  transaction  of  the 
business  intrusted  to  him.  This  requires — 

(a)  That  he  shall  not  assume  any  position  in  which  his  in- 

terests -will  he  antagonistic  to  those  of  the  principal. 
More    specifically— 

(1)  He    cannot,    without    consent    of    the    principal,    act 

both  as  agent  and  as  party  in  the  same  transac- 
tion; 

(2)  He  cannot,  in  a  transaction  requiring  the  exercise 

of  discretion,  act  as  agent  for  both  parties  without 
their  consent; 

(3)  He  cannot  acquire  any  interest  in  the  subject-mat- 

ter of  the  agency  nor  any  rights  adverse  to  the 
principal  based  on  a  violation  of  instructions,  a 
neglect  of  duty,  or  an  abuse  of  the  confidence  re- 
posed in  him; 

(4)  He   cannot,  by  direct  or  indirect  means,  make   any 

profit  from  the  agency  except  his  compensation. 

(b)  That  he   shall  not  assert  the   adverse  interests   or  title 

of  third  parties  to  defeat  the  rights  of  his  principal. 
(o)    That  he   shall  give  notice  to   the  principal  of  all  facts 
relative  to  the   business   of  the  agency  coming  to  his 
knowledge  which  may  affect  the  principal's  interests. 

In  General. 

The  duty  of  the  agent  to  exercise  good  faith  results  from 
the  fiduciary  character  of  the  relation.  Of  necessity,  the 
principal  must  repose  confidence  in  the  agent,  and  must  rely 
upon  his  good  faith  and  loyalty  to  the  interest  which  is  com- 


416  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

mitted  to  him.  The  agent  must  therefore  act  solely  in  the 
interest  of  his  employer,  and  not  in  his  own  interest,  or  in  the 
interest  of  another.  No  person  while  acting  as  agent  may 
enter  into  any  transaction  in  which  he  has  any  personal  in- 
terest, or  take  a  position  in  conflict  with  the  interest  of  his 
principal,  unless  the  principal,  with  full  knowledge  of  all  the 
facts,  consents.1  Whenever  such  a  transaction  is  entered 
into  in  violation  of  this  principle,  the  principal,  when  the  facts 
come  to  his  knowledge,  may  repudiate  the  transaction,  or 
may  adopt  it  and  claim  an  account  of  the  profit  made  by  the 
agent.8 

Acting  as  Agent  and  Parly. 

It  is  a  breach  of  the  confidence  upon  which  the  relation 
rests  for  the  agent  to  unite  the  inconsistent  relations  of  agent 
and  party  in  the  same  transaction.  When  the  agent  assumes 
to  deal  with  himself  in  a  matter  in  which  he  is  expected  to 
deal  with  third  persons,  his  own  interest  and  that  of  his  prin- 
cipal are  necessarily  antagonistic ;  and  the  principal  may  re- 
pudiate the  transaction  irrespective  of  whether  or  not  it  has 
resulted  in  loss  and  without  regard  to  its  bona  fides.8  An 
agent  employed  to  buy  may  not  buy  from  himself,4  nor  may 

§  107.  i  Gillett  v.  Peppercorn,  3  Beav.  78;  Michoud  v.  Girod,  4 
How.  (U.  S.)  503,  555,  11  L.  Ed.  1076;  Wadsworth  v.  Adams,  138  U. 
S.  380,  11  Sup.  Ct.  303,  34  L.  Ed.  984;  Keighler  v.  Manufacturing 
Co.,  12  Md.  383,  71  Am.  Dec.  600;  Davoue  v.  Fanning,  2  Johns.  Ch. 
(N.  Y.)  252;  Farnsworth  v.  Hemmer,  1  Allen  (Mass.)  494,  79  Am. 
Dec.  756. 

2  See  Bowstead,  Dig.  Ag.  102. 

»  Gillett  v.  Peppercorn,  3  Beav.  78;  Aberdeen  Ry.  v.  Blakie,  2 
Eq.  R.  1281;  Michoud  v.  Girod,  4  How.  (U.  S.)  503,  11  L.  Ed.  1076; 
New  York  Cent.  Ins.  Co.  v.  Insurance  Co.,  14  N.  Y.  85;  Taussig  v. 
Hart,  58  N.  Y.  425;  Maryland  Fire  T-S.  Co.  v.  Dalrymple,  25  Md. 
242,  89  Am.  Dec.  779;  People  v.  Board,  11  Mich.  222;  Green  v. 
Knoch,  92  Mich.  26,  52  N.  W.  80. 

*  Gillett  v.  Peppercorn,  3  Beav.  78;  Bentley  v.  Craven,  18  Beav. 
75;  Bischoffsheim  v.  Baltzer  (C.  C.)  20  Fed.  890;  Conkey  v.  Bond, 
36  N.  Y.  427;  Disbrow  v.  Secor,  58  Conn.  35,  18  Atl.  981;  Colbert  v. 
Shepherd,  89  Ya.  401,  16  S.  E.  246;  Friesenhahn  v.  Bushnell,  47  Minn. 
443,  50  N.  W.  597. 


§  107)  DUTY  TO  ACT  IN   GOOD   FAITH.  417 

an  agent  to  sell  become  the  purchaser."  Nor  can  evidence 
of  custom  be  admitted  to  convert  a  broker  employed  to  buy 
for  his  employer  into  a  principal  to  sell  to  him,  unless  the 
employer  knows  and  assents  to  the  dealing  on  the  footing 
of  such  custom.8  Nor  will  the  agent  be  permitted  to  ac- 
complish indirectly  what  he  may  not  do  directly,  as  by  selling 
to  a  third  person  acting  in  his  interest.  Any  person  pur- 
chasing from  the  agent  in  the  agent's  interest,  or  with  knowl- 
edge of  his  misconduct,  stands  in  his  shoes,  and  may  be  char- 
ged as  trustee.7  The  rule  applies  to  all  agents,  public  8  and 
private,  and  to  all  persons  acting  in  a  fiduciary  capacity,  such 
as  trustees,  executors,  guardians,  and  the  like." 

»  Oliver  v.  Court,  Dan.  301;  Bentley  v.  Craven,  18  Beav.  75;  Jeff- 
ries v.  Wiester,  2  Sawy.  (U.  S.)  135,  Fed.  Cas.  No.  7,254;  Copeland 
v.  Insurance  Co.,  6  Pick.  (Mass.)  198;  Greenfield  Sav.  Bank  v. 
Simons,  133  Mass.  415;  Bain  v.  Brown,  56  N.  Y.  285;  Martin  v.  Moul- 
ton,  8  N.  H.  504;  Parker  v.  Vose,  45  Me.  54;  Allen  v.  Doe,  31  Ga. 
544;  Crumley  v.  Webb,  44  Mo.  144,  100  Am.  Dec.  304;  Euneau  v. 
Rieger,  105  Mo.  659,  16  S.  W.  854;  Francis  v.  Kerker,  85  111.  190; 
Hodgson  v.  Raphael,  103  Ga.  480,  30  S.  E.  416;  Dana  v.  Trust  Co., 
99  Wis.  663,  75  N.  W.  429. 

The  clerk  of  a  broker  employed  to  sell  land,  who  has  access  to 
the  correspondence  with  the  seller,  stands  in  such  a  relation  of  con- 
fidence to  the  latter  that  if  he  becomes  the  purchaser  he  is  chargeable 
as  trustee:  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192.  See, 
also,  Hobday  v.  Peters,  28  Beav.  349;  Poillon  v.  Martin,  1  Sandf.  Ch. 
(N.  Y.)  569. 

But  if  a  sale  to  a  third  person  is  consummated  the  agency  is  so 
far  terminated  that  the  agent  may  agree  to  take  the  property  from 
the  purchaser  and  assume  his  obligations.  Robertson  v.  Chapman, 
152  U.  S.  673,  11  Sup.  Ct  741,  38  L.  Ed.  592. 

e  Robinson  v.  Mollett,  L.  R.  7  H.  L.  802.  Cf.  De  Bussche  v.  Alt, 
8  Ch.  D.  286;  Butcher  v.  Krauth,  14  Bush  (Ky.)  713. 

7  Jones  v.  Hoyt,  23  Conn.  157;  Martin  v.  Moulton,  8  N.  H.  504; 
Hughes  v.  Washington,  72  111.  84;  Fry  v.  Platt,  32  Kan.  62,  3  Pac. 
781;  McKay  v.  Williams,  67  Mich.  547,  35  N.  W.  159,  11  Am.  St  Rep. 
597;  Cole  v.  Iron  Co.,  59  Hun,  217,  13  N.  Y.  Supp.  851;  Fisher  v. 
Bush,  133  Ind.  315,  32  N.  E.  924. 

•  People  v.  Board.  11  Mich.  222.  •  Eaton,  Eq.  32L 

TIFF.P.&  A.-27 


418  DUTIES  OF  AGENT  TO  PRINCIPAL^  (Ch.  15 

Same — Knowledge  and  Consent  of  Principal. 

The  law  does  not  forbid  dealings  directly  between  princi- 
pal and  agent  with  respect  to  the  subject-matter  of  the  agen- 
cy, but  all  such  dealings  are  regarded  with  suspicion.  When 
an  agent  enters  into  a  contract  with  his  principal  he  must 
make  a  full  disclosure  of  all  the  material  circumstances  and 
of  all  the  facts  known  to  him  relating  to  the  subject-matter. 
If  the  principal  seeks  to  impeach  such  a  transaction,  the  bur- 
den of  showing  that  no  advantage  was  taken  by  the  agent, 
and  that  it  was  entered  into  in  good  faith  and  after  full  dis- 
closure, rests  upon  the  agent.10  A  transaction  entered  into 
by  the  agent  in  violation  of  his  trust  is,  of  course,  capable 
of  ratification;  and  if,  after  the  principal  has  acquired  full 
knowledge  of  the  facts,  he  does  not  repudiate  it  within  a 
reasonable  time,  ratification  will  be  implied.11 

Acting  as  Agent  for  Both  Parties. 

The  duty  of  the  agent  to  act  solely  with  a  view  to  the  in- 
terest of  his  employer  forbids  him,  in  any  transaction  where 
the  interests  of  the  parties  are  adverse,  from  acting  as  agent 
for  both  parties,  at  least  without  their  consent.  Thus,  an 
agent  employed  to  sell  may  not  ordinarily  act  as  agent  of 
the  buyer,  since  the  duty  which  the  agent  owes  to  the  seller 
to  sell  for  the  best  price  is  inconsistent  with  his  duty  to  the 
buyer  to  buy  on  the  lowest  terms.  When  the  agent  assumes 
antagonistic  positions  as  agent  for  both,  either  may  repudiate 
the  transaction ; 1S  nor  can  the  agent  recover  compensation 

10  McPherson  v.  Watt,  3  App.  Gas.  254;    Edwards  v.  Myrick,  2 
Hare,  60;   Dunne  v.  English,  L.  R,  18  Eq.  524;   Keith  v.  Kellam  (C. 
C.)  35  Fed.  243;    Farnam  v.  Brooks,  9  Pick.  (Mass.)  212;    Howell  v. 
Ransom,  11  Paige  (N.  Y.)  538;    Nesbit  v.  Lockman,  34  N.  Y.  167; 
Fisher's  Appeal,  34  Pa.  29;   Uhlich  v.  Muhlke,  61  111.  499;   Legendre 
v.  Byrnes,  44  N.  J.  Eq.  372,  14  Atl.  621;    Rochester  v.  Levering,  104 
Ind.  562,  4  N.  E.  203. 

11  Marsh  v.  Whitmore,  21  Wall.  (U.  S.)  178,  22  L.  Ed.  482;   Hawley 
v.  Cramer,  4  Cow.  (N.  Y.)  730;  ante,  p.  68. 

12  Hesse  v.  Briant,  6  De  G.,  M.  &  G.  623;    New  York  Cent  Ins. 
Co.  v.  Insurance  Co.,  14  N.  Y.  85;  Utica  Ins.  Co.  v.  Insurance  Co.,  17 


§  107)  DUTT  TO  ACT  IN  GOOD  FAITH.  419 

from  either  18  unless  both  consent  to  the  double  agency.14 
But  if  there  is  no  conflict  between  the  interests  of  the  two 
principals,  as  where  the  terms  of  sale  have  been  fixed  by 
the  seller,  or  are  to  be  fixed  by  agreement  between  the  par- 
ties, and  the  duty  of  the  agent  is  solely  to  bring  buyer  and 
seller  together,  so  that  nothing  is  left  to  his  discretion,  he 
may  act  as  agent  for  both.18 

Barb.  (N.  Y.)  132;  Shir  land  v.  Iron  Works  Co.,  41  Wis.  162;  Fish  v. 
Leser,  69  111.  394;  Mercantile  Mut  Ins.  Co.  v.  Insurance  Co.,  8  Mo. 
App.  408. 

An  insurance  agent  who  has  been  directed  by  his  company  to 
reduce  a  risk  either  by  cancellation  or  reinsurance  cannot  reinsure 
In  another  company  of  which  also  he  is  agent,  without  its  consent. 
Empire  State  Ins.  Co.  v.  Insurance  Co.,  138  N.  Y.  446,  34  N.  E.  200. 

is  Walker  v.  Osgood,  98  Mass.  348,  93  Am.  Dec.  168;  Rice  v.  Wood, 
113  Mass.  133,  18  Am.  Rep.  459;  Bollman  v.  Loomis,  41  Conn.  581; 
Lynch  v.  Fallon,  11  R.  I.  311,  23  Am.  Rep.  458;  Everhart  v.  Searle, 
71  Pa.  256;  Bell  v.  McConnell,  37  Ohio  St  396,  41  Am.  Rep.  528; 
Meyer  v.  Hanchett,  39  Wis.  415;  Id.,  43  Wis.  246;  Atlee  v.  Fink,  75 
Mo.  100,  43  Am.  Rep.  385. 

"By  engaging  with  the  second,  he  forfeits  his  right  to  compensation 
from  the  one  who  first  employed  him.  By  the  second  engagement, 
the  agent,  if  he  does  not  in  fact  disable  himself  from  rendering  to 
the  first  the  full  quantum  of  services  contracted  for,  at  least  tempts 
himself  not  to  do  so.  And  for  the  same  reason  he  cannot  recover 
from  the  second  employer,  who  is  ignorant  of  the  first  engagement 
And,  if  the  second  employer  has  knowledge  of  the  first  engagement, 
then  both  he  and  the  agent  are  guilty  of  the  wrong  committed  against 
the  first  employer,  and  the  law  will  not  enforce  an  executory  con- 
tract entered  into  in  fraud  of  the  rights  of  the  first  employer."  Bell 
v.  McConnell,  supra,  per  Mcllvaine,  J. 

Eviuence  of  custom  to  charge  double  commission  Is  inadmissible. 
Farnsworth  v.  Hemmer,  1  Allen  (Mass.)  494,  79  Am.  Dec.  756; 
Raisin  v.  Clark,  41  Md.  158,  20  Am.  Rep.  66. 

i*  Bell  v.  McConnell,  37  Ohio  St.  396,  41  Am.  Rep.  528,  and  cases 
there  cited.  Contra,  Lynch  v.  Fallon,  11  R.  I.  311,  23  Am.  Rep.  458; 
Meyer  v.  Hanchett,  43  Wis.  246  (semble). 

is  Rupp  v.  Sampson,  16  Gray  (Mass.)  398,  77  Am.  Dec.  416;  Mullen 
v.  Keetzleb,  7  Bush  (Ky.)  253;  Orton  v.  Scofield,  61  Wis.  382,  21 
N.  W.  261;  Collins  v.  Fowler,  8  Mo.  App.  588;  Nolte  v.  Hulbert,  37 
Ohio  St.  445;  Ranney  v.  Donovan,  78  Mich.  318,  44  N.  W.  276; 


420  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Gil.  15 

Acquvri/ng  Adverse  Interest* 

The  agent  may  not  acquire,  without  the  consent  of  the 
principal,  any  interest  in  the  subject-matter  of  the  agency 
or  any  rights  adverse  to  him  based  on  a  violation  of  instruc- 
tions, a  neglect  of  duty,  or  an  abuse  of  the  confidence  reposed. 
Any  property  or  interest  so  acquired  the  agent  will  hold  as 
trustee  for  the  principal,  who  upon  such  terms  of  reimburse- 
ment and  remuneration  as  equity  may  demand  may  compel 
a  transfer  to  himself,  or  who  may  compel  an  account  6f  prof- 
its. 

An  agent  employed  to  purchase  property  may  not  pur- 
chase in  his  own  name  or  on  his  own  behalf,  and  if  he  does 
so  he  will  hold  it  as  trustee.16  And  although  he  uses  his 
own  funds,  he  may  be  compelled  upon  tender  of  the  pur- 
chase price  and  his  reasonable  compensation  to  convey  to  his 
principal.17  So  an  agent  employed  to  buy  or  to  settle  a 
claim  will  not  be  permitted,  if  he  buys  it  in  his  own  name,  to 
hold  it  adversely  to  his  principal,  or  to  recover  from  him 
more  than  he  actually  paid.18 

Where  the  property  thus  adversely  acquired  by  the  agent 
is  real  estate,  to  which  he  takes  title  in  his  own  name,  and 
which  he  pays  for  with  his  own  money,  it  is  a  disputed  ques- 

Knauss  v.  Brewing  Co.,  142  N.  Y.  70,  36  N.  E.  867.  But  see  Webb  v. 
Paxton,  36  Minn.  532,  32  N.  W.  749. 

i«  Lees  v.  Nuttall,  1  Russ.  &  M.  53,  2  Myl.  &  K.  819;  Jenkins  v. 
Eldredge,  3  Story  (U.  S.)  181,  Fed.  Gas.  No.  7,266;  Baker  v.  Whiting, 
3  Sumn.  (U.  S.)  475,  Fed.'  Cas.  No.  787;  Parkist  v.  Alexander,  1 
Johns.  Ch.  (N.  Y.)  394;  Sweet  v.  Jacocks,  6  Paige  (N.  Y.)  355,  31 
Am.  Dec.  252;  Torrey  v.  Bank,  9  Paige  (N.  Y.)  649;  Church  v. 
Sterling,  16  Conn.  388;  Matthews  v.  Light,  32  Me.  305;  Wellford  v. 
Chancellor,  5  Grat.  (Va.)  39;  Winn  v.  Dillon,  27  Miss.  494;  Firestone 
v.  Firestone,  49  Ala.  128;  Rhea  v.  Puryear,  26  Ark.  344;  Barziza  v. 
Story,  39  Tex.  354;  Vallette  v.  Tedens,  122  111.  607,  14  N.  E.  52,  '• 
Am.  St.  Rep.  502. 

IT  Rose  v.  Hayden,  35  Kan.  106,  10  Pac.  554,  57  Am.  Rep.  145; 
Boswell  v.  Cunningham,  32  Fla.  277,  13  South.  354,  21  L.  R.  A.  54. 

»•  Reed  v.  Norris,  2  Myl.  &  C.  361;  Smith  v.  Brotherline,  62  Pa. 
461;  Noyes  v.  Landon,  59  Vt.  569,  10  Atl.  342. 


§  107)  DUTY   TO  ACT   IN   GOOD   FAITH.  421 

tion  whether  if  he  denies  the  trust  the  principal  can  prove 
it  by  oral  evidence.  It  has  been  declared  that  to  permit 
the  principal  to  compel  the  agent  to  convey  the  estate  to 
him  would  be  directly  in  the  teeth  of  the  statute  of  frauds,19 
which  requires  declarations  or  creations  of  trusts  in  land 
to  be  proved  by  writing  signed  by  the  party  who  declares 
the  trust,20  and  this  doctrine  has  very  generally  prevailed.21 
Many  cases,  however,  hold,  and  it  seems  with  the  better  rea- 
son, that,  the  trust  arising  from  the  previously  established 
confidential  relation,  the  agent  may  be  charged  as  trustee 
as  upon  a  trust  arising  by  implication  of  law.22 

An  agent  may  not  use  for  his  own  benefit,  and  to  the  detri- 
ment of  his  principal,  information  obtained  in  the  course 
of  the  agency.  Thus,  if  an  agent  in  the  course  of  his  em- 
ployment discovers  a  defect  in  his  principal's  title,  he  may 
not  use  the  information  to  acquire  the  title  for  himself;23 
or  if  he  discovers  the  existence  of  an  outstanding  charge, 
which  he  purchases  at  a  discount,  he  can  enforce  it  only  for 
the  amount  actually  paid.24  So,  where  a  confidential  clerk, 
prior  to  the  expiration  of  his  employer's  lease,  secretly  ob- 
tained a  lease  for  his  own  benefit,  he  was  compelled  to  trans- 
fer it  to  his  employer.28 

i»  2  Sugden,  Vend.  (9th  Ed.)  c.  15,  §  2. 

20  29  Car.  II,  c.  3,  §  7. 

21  James  v.  Smith  [1891]  1  Ch.  D.  384;   Botsford  v.  Burr,  2  Johns. 
Ch.  406;    Barnard  v.  Jewett,  97  Mass.  87;    Collins  v.  Sullivan,  135 
Mass.  461;  Burden  v.  Sheridan,  36  Iowa,  125,  14  Am.  Rep.  505;   Sand- 
foss  v.  Jones,  35  Cal.  481. 

22  Rose  v.  Hayden,  35  Kan.  106,  10  Pac.  554,  57  Am.  Rep.  145  (an 
elaborate  discussion);   Boswell  v.  Cunningham,  32  Fla.  277,  13  South. 
354,  21  L.  R.  A.  54.     See  Browne,  St.  Frauds  (5th  Ed.)  §  96. 

23  Rlngo  v.  Binns,  10  Pet.  (U.  S.)  269,  9  L.  Eu.  420;   Case  v.  Carroll, 
35  N.  Y.  385;  Galbraith  v.  Elder,  8  Watts  (Pa.)  81;   Smith  v.  Brother- 
line,  62  Pa.  461;  Cameron  v.  Lewis,  56  Miss.  76.     See,  also,  Cragin  v. 
Powell,  128  U.  S.  691,  9  Sup.  Ct.  203,  32  L.  Ed.  566. 

2*  Carter  v.  Palmer,  8  Cl.  &  F.  657. 

20  Gower  v.  Andrew,  59  Cal.  119,  43  Am.  Rep.  242;  Davis  v.  Ham- 
lin,  108  111.  39,  48  Am.  Rep.  541. 

Where  a  business  manager  secretly  copied  from  his  employer's  or- 


422  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

An  agent  may  not  found  adverse  rights  against  his  prin- 
cipal upon  any  neglect  of  duty.  Thus,  an  agent  charged  with 
the  payment  of  taxes  on  land  who  neglects  that  duty  can- 
not acquire  a  valid  tax  title,  but  his  purchase  will  inure  to 
the  benefit  of  his  principal,26  and  this  although  he  has  not 
been  placed  in  funds  to  pay.27  Nor  can  an  agent  take  ad- 
vantage of  his  negligence  to  acquire  rights  which  would  have 
been  secured  to  his  principal  by  the  exercise  of  proper  skill 
and  care.28 

May  Not  Make  a  Profit. 

Good  faith  demands  that  an  agent  shall  not  without  the 
knowledge  and  consent  of  the  principal  make  any  profit  out 
of  the  agency,  beyond  his  stipulated  compensation  or  a  rea- 
sonable compensation,  where  none  is  fixed.  All  profits  be- 
long to  the  principal,  and  must  be  accounted  for.29  "Where 

der  book  a  list  of  names  of  customers,  and  after  termination  of  the 
employment  used  the  list  in  a  similar  business  on  his  own  account, 
he  was  liable  in  damages  to  his  employer.  Robt  v.  Green  [1895]  2 
Q.  B.  1.  See,  also,  Merryweather  v.  Moore  [1892]  2  Ch.  518;  Lamb 
v.  Evans  [1893]  2  Q.  B.  1. 

2e  Matthews  v.  Light,  32  Me.  305;  Oldhams  v.  Jones,  5  B.  Mon. 
(Ky.)  458;  Krutz  v.  Fisher,  8  Kan.  90;  Murdoch  v.  Milner,  84  Mo. 
96;  Collins  v.  Rainey,  42  Ark.  531;  Gonzalia  v.  Bartelsman,  143  111. 
634,  32  N.  E.  532;  Woodman  v.  Davis,  32  Kan.  344,  4  Pac.  262;  Geis- 
inger  v.  Beyl,  80  Wis.  443,  50  N.  W.  501. 

2T  Barton  v.  Moss,  32  111.  50;  Bowman  v.  Officer,  53  Iowa,  640,  6 
N.  W.  28;  McMahon  v.  McGraw,  26  Wis.  614;  Fox  v.  Zimmermann, 
77  Wis.  414,  46  N.  W.  533;  Woodman  v.  Davis,  32  Kan.  344,  4  Pac. 
262;  Page  v.  Webb  (Ky.)  5  S.  W.  308. 

as  An  attorney  employed  to  attach,  procure  judgment,  and  levy  the 
same  on  the  land  attached,  is  estopped  from  denying  the  validity  of 
his  work,  to  his  own  profit;  and  when  such  attachment  and  levy  are 
defective,  and  he  purchases  the  land,  his  title  inures  to  the  judgment 
creditor.  A  record  that  discloses  such  relation  of  attorney  and  client 
is  notice  to  a  subsequent  purchaser  from  the  attorney.  Briggs  v. 
Hodgson,  78  Me.  514,  7  Atl.  387. 

2»  Hinchman  v.  E.  I.  Co.,  1  Ves.  Jr.  298;  Morrison  v.  Thompson, 
L.  R.  9  Q.  B.  480;  Parker  v.  McKenna,  L.  R.  10  Ch.  96;  Jeffries  v. 
Wiester,  2  Sawy.  (U.  S.)  135,  Fed.  Cas.  No.  7,254;  Northern  P.  R.  Co. 


§  107)  DUTY  TO  ACT  IN   GOOD   FAITH.  423 

the  profits  are  made  by  a  violation  of  duty,  it  would  be  ob- 
viously unjust  to  allow  the  agent  to  reap  the  fruits  of  his 
own  misconduct;  and,  where  the  profits  are  made  in  the  ordi- 
nary course  of  the  business  of  the  agency,  it  must  be  pre- 
sumed that  the  parties  intended  that  the  principal  should 
have  the  benefit  thereof."  80  It  is  immaterial  that  the  agent 
contributed  his  own  funds  and  incurred  all  the  risk,81  and 
that  the  principal  suffered  no  injury.82  Nor  will  any  usage 
which  permits  the  agent  to  appropriate  profits  of  the  agency 
be  upheld.88  Thus,  if  an  agent  employed  to  sell  purchases 
for  himself  and  resells  at  an  advance,  he  must  account  for 
the  advance.84  So,  if  he  is  employed  to  sell  at  not  less  than 
a  given  price,  and  he  sells  for  a  higher  price.85  An  agent 
instructed  to  buy  at  a  given  price  must  account  for  the  profit 
if  he  obtains  the  property  for  less.38  He  must  account  for 

v.  Kindred  (C.  C.)  14  Fed.  77;  Warren  v.  Burt,  7  C.  C.  A.  105,  58  Fed. 
101;  Button  v.  Willner,  52  N.  Y.  312;  Bain  v.  Brown,  56  N.  Y.  285; 
Dodd  v.  Wakeman,  2G  N.  J.  Eq.  484. 

so  Story,  Ag.  §  207. 

«i  Dutton  v.  Willner,  52  N.  Y.  312.  See  Williams  v.  Stevens,  L. 
R.  1  P.  C.  352. 

sz  Parker  v.  McKenna,  L.  R.  10  Ch.  96. 

ss  Thompson  v.  Havelock,  1  Camp.  527;  Diplock  v.  Blackburn,  3 
Camp.  43. 

s*  De  Busshe  v.  Alt,  8  Ch.  D.  286. 

SB  Cutter  v.  Dernmon,  111  Mass.  474;  Greenfield  Sav.  Bank  v. 
Simons,  133  Mass.  415;  Bain  v.  Brown,  56  N.  Y.  285;  Merryman  v. 
David,  31  111.  404;  Love  v.  Hfcss,  62  Ind.  255;  Blanchard  v.  Jones, 
101  Ind.  542;  Kramer  v.  Winslow,  154  Pa.  637,  25  Atl.  766. 
•  An  agent  settling  a  claim  for  less  than  authorized  must  account 
for  the  difference.  Judevine  v.  Town  of  Hard  wick,  49  Vt.  180; 
Hitchcock  v.  Watson,  18  111.  289. 

But  if  an  agent  commissioned  to  sell  is  authorized  to  retain  all  over 
a  certain  price,  he  need  not  refund  the  excess.  Anderson  v.  Weiser, 
24  Iowa,  428.  Of.  Morgan  v.  Elford,  4  Ch.  D.  352. 

An  agent  authorized  to  sell  land  and  to  keep  all  he  might  obtain 
above  a  specified  sum  was  bound  to  inform  his  principal  of  facts 
afterwards  discovered  increasing  the  value  of  the  land.  Hegenmyer 
v.  Marks,  37  Minn.  6,  32  N.  W.  785,  5  Am.  St.  Rep.  808. 

8«  Kimber  v.  Barber,  L.  R.  8  Ch.  56;   Northern  P.  R.  Co.  v.  Kin- 


424  DUTIES  OF  AGENT  TO  PRINCIPAL.         (Ch.  15 

any  commission,  discount,  or  personal  benefit  received  from 
a  third  person.87  An  agent  who  is  employed  to  give  his 
whole  time  to  his  principal  must  account  for  any  compen- 
sation received  for  services  rendered  to  another.88 

May  not  Deny  Principal's  Title. 

The  duty  of  loyalty  forbids  the  agent  as  a  rule  to  deny 
the  title  of  his  principal,  or  to  set  up  the  adverse  title  of  a 
third  person,  to  goods  or  money  received  by  him  from  his 
principal  or  on  his  account.89  He  may,  however,  show  that 
since  the  receipt  of  the  property  the  principal  has  parted 
with  the  title,40  or  that  he  has  himself  been  divested  of  pos- 
session by  title  paramount.41  If  the  goods  were  wrongfully 

dred  (C.  C.)  14  Fed.  77;  Bunker  v.  Miles,  30  Me.  431,  1  Am.  Rep.  632; 
Kanada  v.  North,  14  Mo.  615;  Ely  v.  Hanford,  65  111.  267;  National 
Bank  of  Rising  Sun  v.  Seward,  106  Ind.  264,  6  N.  E.  635;  Keyes  v. 
Bradley,  73  Iowa,  589,  35  N.  W.  656;  Crump  v.  Ingersoll,  44  Minn. 
84,  46  N.  W.  141;  Duryea  v.  Vosburgh,  138  N.  Y.  621,  33  N.  E.  932. 

si  Turnbull  v.  Garden,  20  L.  T.  218;  Morrison  v.  Thompson,  L.  R. 
9  Q.  B.  480;  Mayor  of  Salford  v.  Lever  [1891]  1  Q.  B.  168  (bribe). 

Otherwise  of  a  mere  gratuity.  JBtna  Ins.  Co.  v.  Church,  21  Ohio 
St.  492. 

ss  Thompson  v.  Havelock,  1  Camp.  527;  Gardner  v.  McCutcheon, 
4  Beav.  534;  Leach  v.  Railroad  Co.,  86  Mo.  27,  56  Am.  Rep.  408. 

One  who  uses  in  his  own  business  property  delivered  to  him  for 
use  in  that  of  his  employer  is  liable  for  the  value  of  the  use.  Steb- 
bins  v.  Waterhouse,  58  Conn.  370,  20  Atl.  480. 

3»  Zaluta  v.  Viuent,  1  DeG.,  M.  &  G.  315;  Nicholson  v.  Knowles,  5 
Mad.  47;  Collins  v.  Tillou,  26  Conn.  368,  68  Am.  Dec.  398;  Marvin 
v.  Ellwood,  11  Paige  (N.  Y.)'365;  Murray  v.  Vanderbilt,  39  Barb.  (N. 
Y.)  140;  Hancock  v.  Gomez,  58  Barb.  (N.  Y.)  490;  Von  Hurter  v. 
Spengeman,  17  N.  J.  Eq.  185;  Hungerford  v.  Moore,  65  Ala.  232; 
Day  v.  Southwell.  3  Wis.  657;  Witman  v.  Felton,  28  Mo.  601. 

40  Smith  v.  Hammond,  6  Sim.   10;    Marvin  v.  Ellwood,   11  Paige 
(N.  Y.)  365;  Duncan  v.  Spear,  11  Wend.  (N.  Y.)  56;  Roberts  v.  Noyes, 
76  Me.  590;   Snodgrass  v.  Butler,  54  Miss.  45. 

41  Hardman  v.  Wilcox,  9  Bing.  382;   Biddle  v.  Bond,  6  B.  &  S.  225; 
Hunt  v.  Maniere,  11  Jur.  (N.  S.)  28;   Burton  v.  Wilkinson,  18  Vt.  185, 
46  Am.  Dec.  145;  Robertson  v.  Woodward,  3  Rich.  Law  (S.  C.)  251; 
Bliven  v.  Railroad  Co.,  36  N.  Y.  403;  Western  Transp.  Co.  v.  Barber, 
56  N.  Y.  544. 


§  107)  DUTT   TO   ACT   IN   GOOD   FAITH.  425 

obtained  by  the  principal,  and  are  claimed  by  the  true  owner, 
the  agent  may  set  up  the  title  of  the  latter  in  an  action 
brought  by  the  principal.42  And  if  money  is  obtained  by 
the  agent  wrongfully,  or  is  paid  to  him  under  a  mistake  o\ 
fact  or  for  a  consideration  which  fails,  so  that  he  is  liable 
to  repay  it  to  the  person  from  whom  he  obtained  it,  and  he 
does  so  repay  it,  he  may  show  the  fact  as  a  defense  if  called 
on  by  his  principal  to  account.48 

If  an  agent  has  received  money  on  behalf  of  his  principal 
under  an  illegal  contract,  he  must  account  for  the  money, 
and  cannot  set  up  illegality  which  the  other  party  has  waiv- 
ed ; 44  nor,  if  he  has  received  money  from  his  principal  for 
an  illegal  purpose,  which  is  executed,  can  he  refuse  to  refund 
to  the  principal  on  demand.4' 

«  Western  Transp.  Co.  v.  Barber,  56  N.  T.  544;  Biddle  v.  Bond,  6 
B.  &  S.  225  (although  the  agent  has  not  yielded  possession  to  the 
claimant). 

But  not  If  the  agent  had  notice  of  the  adverse  claim  when  the  goods 
were  intrusted  to  him.  Ex  parte  Dixon,  19  Ch.  D.  86. 

«  Bowstead,  Ag.  96. 

Where  an  agent  sold  a  horse  and  received  the  price,  and  the  sale 
•was  rescinded  for  the  agenf  s  fraud  and  the  price  returned,  he  was 
not  liable  to  the  principal  for  the  purchase  money.  Murray  v.  Mann, 
2  Ex.  538. 

Ante.  p.  376. 

4*  Tenant  v.  Elliott,  1  B.  &  P.  3;  Bridger  v.  Savage,  15  Q.  B.  D. 
363;  Baldwin  v.  Potter,  46  Vt.  402;  Norton  v.  Blinn,  39  Ohio  St.  145; 
Gilliam  v.  Brown,  43  Miss.  641;  Brooks  v.  Martin,  2  Wall.  <TJ.  S.)  70, 
17  L.  Ed.  732;  Dillman  v.  Hastings,  144  U.  S.  136,  12  Sup.  Ct  663, 
36  L.  Ed.  378  (usurious  interest);  Snell  v.  Pells,  113  111.  145.  But 
Bee  Clark,  Contr.  493,  note,  and  cases  cited. 

It  is  otherwise  if  the  principal  must  found  his  action  on  an  illegal 
contract.  Hunt  v.  Knickerbacker,  5  Johns.  326;  Fales  v.  Mayberry, 
2  Gall.  (U.  S.)  560,  Fed.  Gas.  No.  4,622;  Lemon  v.  Grosskopf,  22  Wis. 
447,  99  Am.  Dec.  58;  Leonard  v.  Poole,  114  N.  Y.  371,  21  N.  E.  707, 
4  L.  R.  A.  728,  11  Am.  St  Rep.  667. 

48  Souhegau  Nat.  Bank  v.  Wallace,  61  N.  H.  24;  Kiewert  v.  Rinds- 
kopf,  46  Wis.  481,  1  N.  W.  163,  32  Am.  Rep.  731. 


426  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

Duty  to  Gi/oe  Notice. 

It  is  the  duty  of  the  agent  to  give  notice  of  all  facts  com- 
ing to  his  knowledge  which  may  make  it  necessary  for  the 
principal  to  take  steps  for  his  security,  and  failure  to  do  so 
renders  the  agent  liable  for  any  resulting  loss.46  Thus,  an 
agent  employed  to  insure  must  notify  his  principal  promptly 
if  he  is  unable  to  effect  insurance.47  So,  if  the  property  in- 
trusted to  the  agent  is  seized  on  legal  process,48  or  if  a  per- 
son to  whom  he  has  sold  becomes  insolvent,49  or  if  a  note 
taken  by  him  in  payment  for  goods  sold  is  not  paid  at  ma- 
turity,60 he  must  promptly  apprise  his  principal. 

SAME— DUTY  TO  ACCOUNT. 

108.  It  is  the  duty  of  the  agent  to  account  to  the  principal 
for  all  money  and  property  coming  into  his  hands  by 
virtue  of  the  employment,  including  all  profits  result- 
ing from  his  transactions,  either  as  agent,  or  on  his 
own  account  in  breach  of  his  duty  as  agent.  His  spe- 
cific duties  in  this  respect  are— 

(a)  To    keep    accurate    accounts    of    all    his   transactions    in 

the  course  of  the  agency,  and  to  render  his  accounts 
•whenever  required  by  the  terms  of  his  employment  or 
upon  demand; 

(b)  To  keep  money  and  property  of  the  principal  separate 

from  his  own  and  from  those  of  third  persons; 

(c)  To  pay  or  deliver  to  the  principal  all  money  or  property 

of  the  principal  coming  into  his  hands  as  agent  when- 
ever required  by  the  terms  of  the  employment  or  upon 
demand. 

4«  Harvey  v.  Turner,  4  Rawle  (Pa.)  222;  Arrott  v.  Brown,  6  Whart. 
(Pa.)  7. 

An  agent  authorized  to  sell  property  on  specified  prices  and  terms 
Is  bound,  on  learning  that  a  more  advantageous  sale  can  be  made, 
to  communicate  the  facts  to  his  principal.  Holmes  v.  Cathcart  (Minn.) 
92  N.  W.  956.  See,  also,  Hegenmyer  v.  Marks,  37  Minn.  6,  32  N.  W. 
785,  5  Am.  St.  Rep.  808. 

«7  Ante,  p.  407. 

*«  Devall  v.  Burbridge,  4  Watts  &  S.  (Pa.)  305. 

4»  Forrestier  v.  Bordman,  1  Story  (TJ.  S.)  43,  Fed.  Gas.  No.  4,945. 

*o  Harvey  v.  Turner,  4  Rawle  (Pa.)  222. 


§  108)  DUTY  TO  ACCOUNT.  427 

In   General. 

It  is  the  duty  of  the  agent  to  account  to  his  principal  for 
all  money  or  property  which  comes  into  his  hands  as  agent, 
and  to  pay  or  deliver  to  his  principal  all  money  or  property 
of  the  principal  in  his  hands  pursuant  to  the  express  or  im- 
plied understanding  between  them  or  on  demand.  He  must 
account  for  all  profits  and  benefits  received,  whether  in  vio- 
lation of  his  duty  or  in  the  legitimate  course  of  the  agency,1 
These  obligations  require  him  to  keep  and  render  accurate 
accounts  of  his  dealings  as  agent,  and  to  keep  the  money 
and  property  of  his  principal  separate  from  his  own  and  that 
of  third  persons.  He  is  liable  to  account  only  to  his  prin- 
cipal.2 A  subagent  employed  by  an  agent  is  liable  to  account 
only  to  the  agent  who  is  his  principal,3  unless  the  agent  was 
authorized  to  employ  the  subagent  on  behalf  of  the  original 
principal  directly  as  his  agent,  so  that  privity  of  contract 
was  created  between  them.4 


§  108.     i  Ante,  p.  422. 

2  Pinto  v.  Santos,  5  Taunt  447;  Myler  v.  Fitzpatrick,  6  Madd. 
360;  Attorney  General  v.  Chesterfield,  18  Beav.  576;  Tripler  v.  Ol- 
cott,  3  Johns.  Ch.  (N.  Y.)  473;  Toland  v.  Murray,  18  Johns.  (N.  Y.)  24. 

In  case  of  joint  principals,  he  cannot  be  compelled  to  account  to 
them  separately.  Louisiana  Board  of  Trustees  for  Blind  Y.  Dupuy, 
31  La.  Ann.  305. 

«  Bobbins  v.  Fennell,  11  Q.  B.  248;  Stevens  v.  Babcock,  3  B.  & 
Ad.  354;  Sims  v.  Brittain,  1  N.  &  M.  594;  New  Zealand  &  A.  L.  Co. 
v.  Watson,  7  Q.  B.  D.  374;  Trafton  v.  U.  S.,  3  Story  (U.  S.)  646, 
Fed.  Cas.  No.  14,135;  Pownall  v.  Bair,  78  Pa.  403;  National  Bank  of 
the  Republic  v.  Bank,  50  C.  C.  A.  443,  112  Fed.  726. 

Defendant  was  clerk  of  an  attorney  employed  to  receive  plaintiff's 
tithes,  and  with  authority  from  and  as  agent  for  his  master,  who 
•was  absent,  received  moneys  for  tithes  due  plaintiff,  but  did  not  pay 
them  over  to  his  master,  who  never  returned.  Held,  on  the  ground 
that  there  was  no  privity  of  contract  between  plaintiff  and  defendant, 
that  an  action  for  money  had  and  received  did  not  lie.  Stevens  v. 
Babcock,  supra. 

*  De  Bussche  v.  Alt,  8  Ch.  D.  286;  Wilson  v.  Smith,  3  How.  (U.  S.) 
763,  11  L.  Ed.  820;  McKenzie  v.  Nevius,  22  Me.  138,  38  Am.  Dec.  291; 


428-  DUTIES  OF  AGENT  TO  PRINCIPAL*  (Ch.  15 

Duty  to  Keep  and  Render  Accounts. 

The  agent  must  keep  accurate  accounts  of  all  his  dealings 
and  transactions  in  the  course  of  the  agency,  as  well  of  pay- 
ments and  disbursements  as  of  receipts,  and  must  be  con- 
stantly ready  to  render  his  accounts  and  vouchers  when  de- 
manded.5 Whether  this  requires  the  keeping  of  technical 
books  of  account  must  depend  upon  the  nature  of  the  busi- 
ness undertaken.  Where  an  agent  fails  to  keep  and  preserve 
accurate  accounts,  every  unfavorable  inference  consistent 
with  the  established  facts  will  be  drawn  against  him.6 

The  duty  to  be  ready  with  his  account  requires  the  agent 
to  be  ready  to  render  it  when  demanded.7  Whether  he  is 

Campbell  v.  Reeves,  3  Head  (Term.)  226;  Miller  v.  Bank,  30  Md.  392. 
See  ante,  p.  123  et  seq. 

Where  a  ship  was  consigned  to  an  agent  in  China  for  sale,  a 
minimum  price  being  fixed,  and  the  agent,  with  consent  of  the  prin- 
cipal, employed  A.  to  sell  the  ship,  who,  being  unable  to  find  a  pur- 
chaser, bought  her  himself  at  the  minimum  price,  and  resold  at  a 
profit,  it  was  held  that  priority  of  contract  existed  between  the  prin- 
cipal and  A.,  and  that  he  was  liable  to  account  for  the  profit.  De 
Bussche  v.  Alt,  supra. 

B  Pearse  v.  Green,  1  Jac.  &  W.  135;  Clark  v.  Tipping,  9  Bear.  284; 
Turner  v.  Burkinshaw,  L.  R.  2  Ch.  488;  Keighler  v.  Manufacturing 
Co.,  12  Md.  383,  71  Am.  Dec.  600;  Peterson  v.  Poignard,  8  B.  Mon. 
(Ky.)  309;  Illinois  Linen  Co.  v.  Hough,  91  111.  63;  Fred  W.  Wolf  Co. 
v.  Salem,  33  111.  App.  614;  Armour  v.  Gaffey,  30  App.  Div.  121,  51 
N.  Y.  Supp.  846,  affirmed  165  N.  Y.  630,  59  N.  E.  1118. 

The  agent  cannot  be  compelled  to  produce  his  books  and  documents 
to  an  improper  person  appointed  by  the  principal,  such  as  a  rival  in 
business.  Dadswell  v.  Jacobs,  34  Ch.  D.  278. 

«  Gray  v.  Haig,  20  Beav.  219;  Peterson  v.  Poignard,  8  B.  Mon. 
(Ky.)  309.  See,  also,  Fordyce  v.  Peper  (C.  C.)  16  Fed.  516;  Armour 
v.  Gaffey,  30  App.  Div.  121,  51  N.  Y.  Supp.  846. 

Where  the  principal  knew  that  the  agent  was  not  competent  to  keep 
accounts,  and  by  his  conduct  contributed  to  make  accurate  book- 
keeping impossible,  and  the  agent  claimed  a  balance,  it  being  im- 
possible to  reach  an  accurate  result  from  the  accounts,  the  parties 
were  left  in  statu  quo.  Macauley  v.  Elrod  (Ky.)  28  S.  W.  782.  Cf. 
Robbins  v.  Robbins  (N.  J.  Ch.)  3  Atl.  264. 

i  "It  is  the  first  duty,  of  an  agent    *     *     *     to  be  constantly  ready 


§  108)  DUTY   TO   ACCOUNT.  429 

bound  to  render  it  without  demand  must  depend  upon  the 
understanding  of  the  parties,  arising  from  special  agreement 
or  from  the  previous  course  of  dealing  between  them,  the 
usages  or  customs  of  the  particular  agency,  or  other  circum- 
stances.8 Thus,  it  is  ordinarily  the  duty  of  a  collection  agent 
to  remit  upon  collection,  and  this  duty  involves  the  duty  of 
rendering  an  account  at  the  same  time."  In  the  absence 
of  agreement  a  factor  should  render  his  account  upon  de- 
mand,10 but  it  has  been  held  that  where  a  demand  would  be 
impracticable  or  highly  inconvenient  he  should  render  his 
account  within  a  reasonable  time.11 

Duty  to  Keep  Property  Separate. 

Necessarily  incidental  to  the  duty  to  account  is  the  duty  to 
keep  the  goods  and  money  of  the  principal  separate  from 
his  own  or  from  those  of  other  persons.  If  the  agent  mixes 
the  principal's  goods  with  his  own,  the  burden  is  on  him  to 
identify  his  own;  and  if  he  fails  to  do  so,  or  they  are  in- 
separable from  the  mass,  the  principal  may  take  the  whole.12 
If  the  agent  mixes  the  principal's  fund  with  his  own,  he  is 
liable  for  so  much  as  he  cannot  prove  to  be  his  own ; 13 

with  his  accounts.  But  this  must  mean  that  the  agent  must  be 
ready  to  render  his  accounts  when  they  are  demanded."  Turner  v. 
Burkinshaw,  L.  R.  2  Ch.  488,  491. 

«  Clark  v.  Moody,  17  Mass.  145;  Eaton  v.  Welton,  32  N.  H.  352; 
Leake  v.  Sutherland,  25  Ark.  219. 

»  Post,  p.  431. 

10  Topham  v.  Braddick,  1  Taunt  572. 

11  Clark  v.  Moody,  17  Mass.  145;  Langley  v.  Sturtevant,  7  Pick. 
(Mass.)  214;    Dodge  v.  Perkins,  9  Pick.  (Mass.)  368,  387;    Eaton  v. 
Welton,  32  N.  H.  352. 

12  Lupton  v.  White,  15  Ves.  432;    Hart  v.  Ten  Eyck,  2  Johns.  Ch. 
(N.  Y.)  62;   Yates  v.  Arden,  5  Cranch,  C.  C.  (TL  S.)  526,  Fed.  Cas. 
No.  18.126;    Central  Nat  Bank  v.  Insurance  Co.,  104  U.  S.  54,  26  L. 
Ed.  693;   First  Nat  Bank  v.  Kilbourne,  127  111.  573,  20  N.  E.  681,  1] 
Am.  St.  Rep.  174. 

is  Central  Nat.  Bank  v.  Insurance  Co.,  104  U.  S.  54,  26  L.  Ed.  693; 
Atkinson  v.  Ward,  47  Ark.  533,  2  S.  W.  77. 

It  has  been  held  that  In  the  usual  course  of  business  a  factor  is  not 


430  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

and,  if  the  mingled  fund  is  lost  by  accident  or  otherwise  or 
depreciates,  the  agent  must  make  good  the  loss.14  Thus, 
an  agent  depositing  money  in  bank,  who  deposits  it  in  his 
own  name,  or  without  distinguishing  it  on  the  books  of  the 
bank  as  belonging  to  his  principal,  is  responsible  for  the 
loss  in  the  event  of  the  failure  of  the  bank.16  One  holding 
moneys  in  trust  cannot  be  allowed  so  to  invest  or  deposit 
them  that  he  may  claim  them  as  his  own  if  the  venture 
proves  profitable,  or  shift  the  loss  upon  his  principal  if  a  loss 
occurs.16 

Duty  to  Pay  Over  and  Deliver. 

A  person  who  has  received  money  or  property  as  agent  is 
bound  not  only  to  account  for  it,  but  to  pay  or  deliver  when 
requested.17  The  time  when  the  agent  must  pay  over  may 
of  course  be  fixed  by  the  contract  of  employment  or  by 
subsequent  instructions,  and  like  the  time  for  rendering 
his  accounts  may  be  fixed  by  the  implied  understanding  of 

required  to  keep  the  proceeds  of  the  sale  of  goods  of  different  con- 
signors separate,  but  that  he  may  mingle  them  in  a  common  mass, 
and  with  like  funds  of  his  own,  he  becoming  simply  a  debtor  to  his 
principal  for  the  balance  due  by  his  account.  Vail  v.  Durant,  7 
Allen  (Mass.)  408,  83  Am.  Dec.  695.  But  see  Banning  v.  Bieakley, 
27  La.  Ann.  257,  21  Am.  Rep.  554. 

i*  Pinckney  v.  jjunn,  2  S.  C.  314;  Marine  Bank  v.  Rushmore,  28 
111.  463;  Massachusetts  Life  Ins.  Co.  v.  Carpenter,  2  Sweeney  (N.  Y.) 
734.  Cf.  Bartlett  v.  Hamilton,  46  Me.  435. 

IB  Massey  v.  Banner,  1  Jac.  &  W.  241;  Naltner  v.  Dolan,  108  Ind. 
500,  8  N.  E.  289,  58  Am.  Rep.  61;  Jenkins  v.  Walter,  8  Gill  &  J.  (Md.) 
218,  29  Am.  Dec.  539;  Mason  y.  Whitthorne,  2  Cold.  (Tenn.)  242; 
Norris  v.  Hero,  22  La.  Ann.  605. 

The  rule  has  been  applied  to  an  administrator  depositing  in  his 
own  name,  though  he  had  no  other  funds  in  the  bank,  and  informed 
Its  officers  that  the  funds  were  held  in  trust.  Williams  v.  Williams, 
65  Wis.  300,  12  N.  W.  465,  13  N.  W.  274,  42  Am.  Rep.  708.  See 
Eaton,  Eq.  439. 

is  Wren  v.  Keiton,  11  Ves.  377;  State  v.  Greensdale,  106  Ind.  364. 
6  N.  E.  926,  55  Am.  Rep.  753. 

i^Harsant  v.  Elaine,  56  L.  J.  Q.  B.  511;  Pearse  v.  Green,  1  Jac. 
&  W.  135. 


§  108)  DUTY  TO  ACCOUNT.  431 

the  parties,  arising  from  a  previous  course  of  dealing,  the 
usages  or  customs  of  the  particular  agency,  or  other  cir- 
cumstances.18 Thus,  it  is  ordinarily  the  duty  of  an-  agent 
employed  merely  to  collect  to  remit  within  a  reasonable  time 
after  receipt  of  the  money,  if  no  instructions  in  that  par- 
ticular have  been  given.19  But  money  received  by  an  agent 
merely  as  a  deposit  or  in  a  continuing  trust  is  in  the  agent's 
hands  to  await  the  principal's  orders,  and  there  is  no  duty 
to  pay  it  over  until  demand.20 

In  accounting  with  his  principal,  the  agent  has  in  general 
a  right  to  deduct  the  amount  of  his  commissions,  ad- 
vances, and  proper  charges.21  It  seems  that  he  has  no  right 

i»  "Where  the  principal  Is  advised  from  time  to  time  by  his  agent 
of  the  sales  as  they  are  made,  and  again  of  the  receipt  of  the  moneys 
as  they  are  paid  thereon,  and  according  to  the  understanding  that 
exists  between  them,  arising  either  from  a  special  agreement  or  a 
previous  course  of  dealing  between  them,  or  the  established  usage 
or  custom,  if  there  be  any,  regulating  the  same,  the  principal  is  to 
call  on  his  agent  or  factor  and  receive  his  money,  or  to  draw  upon 
him  for  it,  the  latter  may  retain  it  until  it  is  demanded.  But  where 
the  factor  or  agent  is  bound,  either  by  the  agreement  or  previous 
course  of  dealing  between  them,  or  the  usage  of  trade  in  regard 
thereto,  to  forward  the  money  to  his  principal  or  employer,  it  is 
clearly  his  duty  to  do  so  as  he  shall  receive  it,  though  it  may  be 
only  a  part  of  what  he  expects,  by  the  earliest  opportunity;  and  no 
practice  to  the  contrary  will  either  Justify  or  excuse  his  retaining  it 
beyond  such  time,  unless  the  sum  shall  be  so  small  as  not  to  justify 
the  expense  of  forwarding  it"  Brown  v.  Arrott,  6  Watts  &  S.  (Pa.) 
418. 

i»  Lillie  v.  Hoyt,  5  Hill  (N.  Y.)  395,  40  Am.  Dec.  360;  Campbell 
v.  Boggs,  48  Pa.  524;  Merchants'  Bank  v.  Rawls,  2i  Ga.  289;  Hawk- 
ins v.  Walker,  4  Yerg.  (Tenn.)  188;  Cagwin  v.  Ball,  2  111.  App.  70; 
Campbell  v.  Roe,  32  Neb.  345,  49  N.  W.  452;  Wiley  v.  Logan,  96  N. 
C.  510,  2  S.  E.  598;  Mast  v.  Easton,  33  Minn.  161,  22  N.  W.  253. 

20  Burdick  v.  Garrick,  L.  R.  5  Ch.  233;    Watson  v.  Bank,  8  Mete. 
(Mass.)  217,  41  Am.  Dec.  500;    Downes  v.  Bank,  6  Hill  (N.  Y.)  297; 
Baker  v.  Joseph,  16  Cal.  173;   Zuck  v.  Gulp,  59  Cal.  142;   Starr  v. 
Stiles  (Ariz.)  19  Pac.  225. 

21  Post,  p.  463. 


432  DUTIES  OF  AGENT  TO  PRINCIPAL.  (Ch.  15 

to  set  off  against  his  principal  a  debt  due  him  in  a  matter 
not  arising  out  of  the  agency.  That  he  has  no  right  to 
apply  to  his  own  purposes  money  which  he  has  received 
to  apply  to  a  particular  purpose  is,  of  course,  clear.2*  And  it 
has  been  held  that  an  agent  who  collects  a  claim  has  no 
right  to  set  off  an  antecedent  debt.23 

Same — Necessity  of  Demand. 

It  is  the  general  rule,  though  with  some  conflict  of  au- 
thority,24 that  no  right  of  action  accrues  to  the  principal 
for  money  or  property  received  by  the  agent  which  he  has 
failed  to  pay  over  or  deliver  until  proper  demand  has  been 
made.25  The  right  of  action  is  based  on  the  agent's  breach  of 
the  duty  to  pay  over  the  money  or  deliver  the  property,  and 

«2  Tagg  v.  Bowman,  99  Pa.  376;  Id.,  108  Pa.  273,  56  Am.  Rep. 
204.  See,  also,  Buchanan  v.  Findlay,  9  B.  &  C.  738. 

23  Shearman  v.  Morrison,   149  Pa.  386,  24  Atl.  313;    Simpson  v. 
Pinkerton,   10  Wkly.   Notes  Cas.   (Pa.)  423;    Russell  v.   Church,  65 
Pa.  9. 

But  in  Noble  v.  Leary,  37  Ind.  186,  it  was  held  that  an  attorney 
•who  had  collected  money  could  set  off  a  note  held  by  him  and  exe- 
cuted by  the  principal. 

"The  principle  underlying  *  *  *  !s  that  an  agent,  or  attorney 
who,  by  virtue  of  special  authority,  has  received  money,  cannot, 
when  sued  by  his  principal,  set  off  a  debt  due  to  himself  in  a  matter 
not  arising  out  of  his  agency.  By  accepting  the  special  trust  he 
waives  the  general  right  of  set-off.  Moreover,  the  debts,  not  being 
In  the  same  right  or  capacity,  lack  the  mutuality  which  is  essential 
to  the  right  of  set-off."  Sterrett,  J.,  in  Tagg  v.  Bowman,  108  Pa.  273. 

24  This  conflict  exists  mainly  with  respect  to   certain  classes  of 
agents,  and  the  question  involved  Is  whether  they  are,  by  the  char- 
acter of  their  duties,  under  obligation  to  remit  or  pay  over  within  a 
reasonable  time  after  receipt  of  the  money. 

25  Topham  v.  Braddick,  1  Taunt  572;   Williams  v.  Storrs,  6  Johns. 
Ch.  (N.  Y.)  353,  10  Am.  Dec.  340;    Ferris  v.  Paris,  10  Johns.  (N.  Y.) 
285;    Cooley  v.  Betts,  24  Wend.  (N.  Y.)  203;    Hall  v.  Peck,  10  Vt. 
474;    Hutchins  v.  Oilman,  9  N.  H.  359;    Waring  v.  Richardson,  33 
N.  C.  77;   Bedell  v.  Janney,  9  111.  193;   Cockrill  v.  Kirkpatrick,  9  Mo. 
697;   Jett  v.  Hempstead,  25  Ark.  462;    Hammett  v.  Brown,  60  Ala. 
498;   Claypool  v.  Gish,  108  Ind.  424,  9  N.  E.  382. 


§  108)  DUTY  TO  ACCOUNT.  433 

the  rule  assumes  that  there  is  no  breach  until  demand  has 
been  made  and  compliance  therewith  neglected  or  refused. 
The  duty  may,  of  course,  become  fixed  upon  the  agent  by 
other  circumstances,  and  in  case  of  its  breach  the  principal's 
right  of  action  is  complete  without  demand.  Thus  if  by 
reason  of  the  character  of  the  agency,  the  established  usages 
of  the  business,  or  the  circumstances  of  the  particular  case, 
it  is  the  agent's  duty  to  remit  or  pay  over  within  a  rea- 
sonable time  after  receipt  of  the  money,  his  failure  to  do 
so  renders  him  liable  to  an  action  without  demand.2*  So, 
no  demand  is  necessary  where  the  agent  has  agreed,27  or  has 
been  instructed,18  to  remit  at  a  certain  time,  and  has  failed 
to  do  so.  The  agent  may  waive  demand,  and  a  waiver  may 
be  implied  from  the  circumstances.  Thus,  where  he  denies 
the  agency  or  the  liability  sought  to  be  enforced,29  his  con- 
duct amounts  to  a  waiver  of  demand.  Nor  is  any  demand 
necessary  where  the  agent  has  violated  his  duty  to  notify 
the  principal  of  the  receipt  of  the  money  within  a  reason- 
able time,80  or  where  he  has  converted  it  to  his  own  use.31 
It  has  also  been  held  that,  in  cases  where  demand  would 
be  impracticable  or  highly  inconvenient,  the  agent  must  ac- 
count without  demand,  and  that  on  this  ground  a  foreign 
agent  may  be  sued  without  a  prior  demand  for  an  account- 

*«  Brown  v.  Arrott,  6  Watts  &  S.  (Pa.)  418.  See  cases  cited, 
note  19,  supra. 

27  Haebler  v.  Lmttgen,  2  App.  Div.  390,  37  N.  Y.  Supp.  794;  Mast 
v.  Easton,  33  Minn.  161,  22  N.  W.  253. 

zs  Cooley  v.  Betts,  24  Wend.  (N.  Y.)  203;  Ferris  v.  Paris,  10  Johns. 
(N.  Y.)  285;  Clark  v.  Moody,  17  Mass.  145. 

29  Tillotson  v.  McCrillis,  11  Vt.  477;  Hammett  v.  Brown,  60  Ala. 
498;  Wiley  v.  Logan,  95  N.  C.  358. 

so  Cooley  v.  Betts,  24  Wend.  (N.  Y.)  203;  Ferris  v.  Paris,  10  Johns. 
(N.  Y.)  285;  Krause  v.  Dorrance,  10  Pa.  462,  51  Am.  Dec.  496;  Jett 
v.  Hempstead,  25  Ark.  462. 

si  Haas  v.  Damon,  9  Iowa,  589;    Chapman  v.  Burt,  77  111.  337; 
Terrell  v.  Butterfleld,  92  Ind.  1;    Jackson  v.  Baker,  1  Wash.  O..C. 
(U.  S.)  445,  Fed.  Gas.  No.  7,130. 
TIFF.P.&  A.— 28 


434  DUTIES  OP  AGENT  TO  PRINCIPAL.  (Ch.  15 

ing.82     But  on  this  point  the  authorities  are   not  in  har- 
mony." 

Same — Statute  of  Limitations, 

What  has  been  said  relative  to  demand  furnishes  an  an- 
swer to  the  question  when  the  statute  of  limitations  begins 
to  run  in  favor  of  the  agent.  The  statute  runs  only  from  de- 
mand and  refusal,  or  from  the  time  an  account  is  rendered 
showing  a  balance  in  the  principal's  favor.84  But  if,  from 
the  character  of  the  agency  or  other  circumstances,  it  is  the 
agent's  duty  to  remit  at  once,  as  in  case  of  a  collecting 
agent,85  the  principal's  right  of  action  is  complete,  and  the 
statute  begins  to  run  upon  the  expiration  of  a  reasonable 
time  from  the  receipt  of  the  money  by  the  agent. 

Same —  When  Liable  for  Interest. 

If  the  agent  is  not  chargeable  with  any  default  or  breach 
of  duty,  and  is  ready  to  pay  when  called  upon  by  the  prin- 
cipal, he  is  not  liable  for  interest  on  moneys  in  his  hands 
unless  he  has  received,  or  has  agreed  to  pay,  interest.38  If, 
however,  he  unreasonably  neglects  to  give  the  principal  no- 

•2  Clark  v.  Moody,  17  Mass.  145;  Langley  v.  Sturtevant,  7  Pick. 
(Mass.)  214;  Dodge  v,  Perkins,  9  Pick.  (Mass.)  368;  Eaton  v.  Welton, 
32  N.  H.  352. 

33  gee  Topham  v.   Braddick,   1  Taunt.   572;    Ferris  v.   Paris,    10 
Johns.  (N.  Y.)  285;   Cooley  v.  Betts,  24  Wend.  (N.  Y.)  203;   Green  v. 
Williams,  21  Kan.  64;   Coster  v.  Murray,  5  Johns.  Ch.  (N.  Y.)  522. 

34  Topham  v.  Braddick,  1  Taunt.  572;    Sawyer  v.  Tappan,  14  N. 
H.  352;    Hart's  Appeal,  32  Conn.  520;    Waring  v.  Richardson   33  N. 
C.  77;  Jayne  v.  Mickey,  55  Pa.  260;  Judah  v.  Dyott,  3  Blackf.  (Ind.) 
324,  25  Am.  Dec.  112;    Jett  v.  Hempstead,  25  Ark.  463;    Baker  v. 
Joseph,  16  Cal.  173;    Starr  v.  Stiles  (Ariz.)  19  Pac.  225;    Quinn  v. 
Gross,  24  Or.  147,  33  Pac.  535.    But  see  Sanford  v.  Lancaster,  81  Me. 
434,  17  Atl.  402. 

so  Campbell  v.  Roe,  32  Neb.  345,  49  N.  W.  452.  See  cases  cited, 
note  19,  supra. 

ae  Wolfe  v.  Findlay,  6  Hare,  66;  Mason  v.  Roosevelt,  5  Johns.  Ch. 
(N.  Y.)  534;    Williams  v.  Storrs,  6  Johns.  Ch.  (N.  Y.)  353,  10  Am. 
Dec.  340;    Hyman  v.  Gray,  49  N.  C.  155;    Hauxhurst  v.  Hovey,  26' 
Vt.  544. 


§  108)  DUTY  TO  ACCOUNT.  435 

tice  of  the  receipt  of  the  money  "  or  improperly  withholds 
money  collected  when  it  is  his  duty  to  pay  it  over,88  or 
after  demand  in  cases  where  he  is  entitled  to  demand,89  such 
breach  of  duty  renders  him  liable  for  interest  from  the  time 
of  such  default.  So,  if  he  retains  and  applies  to  his  own 
use  the  money  of  the  principal,  or  otherwise  deals  with  it 
improperly  and  in  breach  of  his  duty,  he  is  chargeable  with 
interest  40  at  least  while  it  is  so  employed. 

Form  of  Action — Accounting  in  Equity. 

For  the  enforcement  of  the  agent's  obligation  to  account 
the  principal  may  resort  to  the  usual  legal  remedies  for 
breach  of  contract  or  for  conversion  or  for  the  recovery 
of  money  due  or  of  property  wrongfully  withheld.41  And  in 

87  Dodge  v.  Perkins,  9  Pick.  (Mass.)  368;  Williams  v.  Storrs,  6 
Johns.  Ch.  (N.  Y.)  353,  10  Am.  Dec.  340. 

ss  Anderson  v.  State,  2  Ga.  370;  Board  of  Justices  v.  Fennimore, 
1  N.  J.  Law,  242;  Bedell  v.  Janney,  9  111.  193. 

8»  Pearse  v.  Green,  1  Jac.  &  W.  135;  Harsant  v.  Blaine,  56  L.  J. 
Q.  B.  511;  Hyman  v.  Gray,  49  N.  C.  155;  Wheeler  v.  Haskins,  41 
Me.  432. 

*o  Rogers  v.  Boehm,  2  Esp.  703;  Brown  v.  Southhouse,  3  Bro.  C. 
C.  107;  Hinckley  v.  Railroad  Co.,  100  U.  S.  153,  25  L.  Ed.  591;  Hill 
v.  Hunt,  9  Gray  (Mass.)  66;  Schisler  v.  Null,  91  Mich.  321,  51  N.  W. 
900. 

If  an  agent  mixes  the  money  of  the  principal  with,  his  own,  and 
makes  use  of  it,  he  is  liable  for  interest  on  it  from  that  time.  Bur- 
dick  v.  Garrick,  L.  R.  5  Ch.  233;  Miller  v.  Clark.  5  Lans.  (N.  Y.) 
390;,  Blodgett's  Estate  v.  Converse's  Estate,  60  Vt.  410,  15  Atl.  109. 

He  must  pay  interest  in  case  of  fraud.  Hardwick  v.  Vernon,  14 
Ves.  504.  And  on  secret  profits,  Benson  v.  Heathorn,  1  Y.  &  Coll, 
C.  C.  326;  Tyrrell  v.  Bank  of  London,  10  H.  L.  Gas.  26, 

41  From  his  undertaking  the  agency,  the  law  implies  a  promise  on 
the  agent's  part  to  account  for  money  received,  and  for  breach  of 
this  promise  assumpsit  will  lie.  Harsant  v.  Blaine,  56  L.  J.  Q.  B. 
611;  Clark  v.  Moody,  17  Mass.  145;  Campbell  v.  Boggs,  48  Pa.  524; 
Floyd  v.  Day,  3  Mass.  403,  3  Am.  Dec.  171;  Seidel  v.  Peschkaw,  27 
N.  J.  Law,  427. 

An  agent  authorized  to  collect  accounts  and  pay  creditors  of  the 
principal  out  of  the  proceeds  may  be  sued  in  assumpsit  for  money 
bad  and  received,  on  his  refusal  to  account  for  the  balance.  Tanner 


436  DUTIES  OP  AGENT  TO  PRINCIPAL..  (Ch.  15 

many  cases  the  principal  has  a  right  to  have  an  account 
taken  in  a  court  of  equity.  This  right  depends  upon  the 
trust  and  confidence  reposed  in  the  agent,  and  it  seems 
that  it  exists  in  all  cases  where  there  is  a  fiduciary  relation 
between  the  parties,  whereby  it  is  the  duty  of  the  agent  to 
keep  an  account  of  moneys  received  and  to  pay  them  over 
or  account  for  them  to  the  principal.42  It  has,  indeed,  been 
frequently  declared  or  held  that  the  right  to  an  accounting 
in  equity  does  not  exist  where  only  a  single  transaction  is 
involved,43  but  since  the  jurisdiction  does  not  depend  upon 

v.  Page,  106  Mich.  155,  63  N.  W.  993.  See,  also,  Liesemer  v.  Burg, 
106  Mich.  124,  63  N.  W.  999;  Gottschalk  v.  Smith,  156  111.  377,  40  N. 
E.  937;  Winningham  v.  Fancher,  52  Mo.  App.  458;  English  v. 
Devarro,  5  Blackf.  (Ind.)  588. 

Where  an  agent  authorized  to  sell  land  sells  it  for  worthless  bonds, 
he  is  liable  in  assumpsit  for  the  amount  he  should  have  received. 
Paul  v.  Grimm,  165  Pa.  139,  30  Atl.  721,  44  Am.  St.  Rep.  648. 

Where  the  agent  refuses  to  account  for  the  proceeds  of  goods  sold, 
the  principal  may,  at  his  election,  sue  for  breach  of  contract  or  con- 
version of  the  goods.  Ridder  v.  Whitlock,  12  How.  Prac.  (N.  Y.)  208. 
See,  also,  Ohalliss  v.  Wylie,  35  Kan.  506,  11  Pac.  438;  Coit  v.  Stew- 
art, 50  N.  Y.  17;  Michigan  Carbon  Works  v.  Schad,  49  Hun,  605,  1 
N.  Y.  Supp.  490. 

See,  also,  as  to  liability  for  conversion,  ante,  p.  401;  Wells  v. 
Collins,  74  Wis.  341,  43  N.  W.  160,  5  L.  R.  A.  531;  Green  tree  v. 
Rosenstock,  61  N.  Y.  583;  Kearney  v.  Glutton,  101  Mich.  106,  59  N. 
W.  419,  45  Am.  St.  Rep.  394;  Kidder  v.  Biddle,  13  Ind.  App.  653,  42 
N.  E.  293;  Coleman  v.  Pearce,  26  Minn.  123,  1  N.  W.  846. 

As  to  when  replevin  will  lie,  see  Terwilliger  v.  Beals,  6  Lans.  (N. 
Y.)  403;  Robinson  v.  Stewart,  97  Mich.  454,  56  N.  W.  853;  Steven- 
son v.  Taylor,  2  Mich.  N.  P.  95. 

*2  Makepeace  v.  Rogers,  4  DeG.,  J.  &  S.  649;  Marvin  v.  Brooks, 
94  N.  Y.  71;  Thornton  v.  Thornton,  31  Grat.  (Va.)  212;  Vilwig  v. 
Railroad  Co.,  79  Va.  449;  Webb  v.  Fuller,  77  Me.  568,  1  Atl.  737; 
Illges  v.  Dexter,  73  Ga.  362;  Rippe  v.  Stogdill,  61  Wis.  38,  20  N.  W. 
645;  Warren  v.  Holbrook,  95  Mich.  185,  54  N.  W.  712,  35  Am.  St. 
Rep.  554;  Colonial  &  U.  S.  Mortg.  Co.  v.  Mortgage  Co.  (C.  C.)  44  Fed. 
219.  See,  also,  Padwick  v.  Stanley,  9  Harv.  627;  Dunn  v.  Johnson, 
115  N.  C.  249,  20  S.  E.  390. 

43  Phillips  v.  Phillips,  9  Hare,  474;  Nuvulshaw  v.  Brownrigg,  2 
DeG.,  M.  &  G.  441;  Halsted  v.  Rabb,  8  Port.  (Ala.)  65;  Coquillard 
v.  Suydam,  8  Blackf.  (Ind.)  24. 


§  108)  DUTY   TO   ACCOUNT.  437 

the  complication  of  accounts  *4  this  view  is  not  to  be  sup- 
ported, although  the  fact  that  the  account  is  complicated  is, 
of  course,  a  distinct  ground  of  equitable  jurisdiction.48  On 
the  other  hand,  the  bare  relation  of  principal  and  agent, 
where  the  agent  is  not  employed  in  a  fiduciary  capacity,  is 
not  enough  to  confer  jurisdiction.48 

Del  Credere  Agent. 

While,  as  a  rule,  an  agent  who  has  exercised  due  care 
and  skill  incurs  no  personal  liability  to  his  principal  in  respect 
to  contracts  entered  into  on  his  behalf,  he  may  assume  a 
personal  liability  by  becoming  a  del  credere  agent.  A  del 
credere  agent  is  a  mercantile  agent,  usually  a  factor,  who, 
in  consideration  of  additional  compensation,  guaranties  to 
his  principal  the  payment  of  debts  that  become  due  through 
his  agency.47  As  to  the  nature  and  extent  of  the  obligation 
resting  upon  such  agents  there  has  been  no  little  conflict. 
In  England  it  was  originally  held  that  his  obligation  is  ab- 
solute, making  him  liable  in  the  first  instance  and  in  all 
events.48  Later  cases,  however,  have  held  that  his  obli- 
gation is  secondary,  and  that  he  is  merely  a  surety  for  the 
due  performance  of  the  person  with  whom  he  deals.49  In 
this  view,  it  would  follow  that  his  undertaking  is  a  promise 
to  answer  for  the  debt  or  default  of  another  within  the 
fourth  section  of  the  statute  of  frauds,60  yet  more  recently  it 
has  been  held  that  his  undertaking  is  not  within  the  statute  61 

44  But  see  Powers  v.  Cray,  7  Ga.  206;  Crothers  v.  Lee,  29  Ala.  337. 

46  Eaton,  Eq.  517. 

««  Hemmings  v.  Pugh,  4  Giff.  456. 

A  banker  is  not  bound  to  account  In  equity  to  his  customer,  tm- 
less  the  accounts  are  complicated.  Foley  v.  Hill,  1  Ph.  399. 

47  Lewis  v.  Brehme,  33  Md.  412,  3  Am.  Rep.  190. 

48  Grove  v.  Dublols,  1  T.  R.  112;    Mackenzie  v.  Scott,  6  Bro.  P. 
C.  280;    Houghton  v.  Matthews,  3  Bos.  &  P.  489.    See  Bowstead, 
Dig.  Ag.  2. 

< »  Morris  v.  Cleasby,  4  M.  &  S.  566.    See,  also,  Hornby  v.  Lacy, 
6  M.  &  S.  166. 
oo  29  Car.  II,  c.  3. 
BI  Coutourier  v.  Hastie,  8  Ex.  40;  Sutton  v.  Gray  [1894]  1  Q.  B.  285. 


438  DUTIES  OP  AGENT  TO  PRINCIPAL^  (Ch.  15 

— a  position  that  can  hardly  be  reconciled  with  the  view  that 
he  is  only  secondarily  liable.152  In  the  United  States  the  ear- 
lier view  has  prevailed,  so  that  he  may  be  charged  in  in- 
debitatus  assumpsit  as  for  goods  sold,  and  his  undertak- 
ing is  not  within  the  statute  of  frauds.53  In  other  respects 
he  has  the  rights  and  duties  of  an  ordinary  agent.  If  he 
properly  sells  upon  credit,  he  cannot  be  made  accountable 
before  the  expiration  of  the  credit.54  Nor  does  the  prin- 
cipal forego  his  rights  against  the  third  party,  but  he  may 
forbid  payment  to  the  agent,  and  may  maintain  an  action 
against  the  buyer  for  the  price.55 

»2  See  Wickham  v.  Wickham,  2  Kay  &  J.  487. 

83  Swan  v.  Nesmith,  7  Pick.  (Mass.)  220,  19  Am.  Dec.  282;  Wolff 
v.  Koppel,  5  Hill  (N.  Y.)  458;  Id.,  2  Denio  (N.  Y.)  368,  43  Am.  Dec. 
751;  Sherwood  v.  Stone,  14  N.  Y.  267;  Lewis  v.  Brehme,  33  Md. 
412,  3  Am.  Rep.  190.  Contra,  Thompson  v.  Perkins,  3  Mason,  C. 
C.  (U.  S.)  232,  Fed.  Cas.  No.  13,972. 

e*  Lewis  v.  Brehme,  33  Md.  412,  3  Am.  Rep.  190. 

»B  Hornby  v.  Lacy,  6  M.  &  S.  166. 

"All  the  cases  concede  it  to  be  the  right  of  the  principal  to  forbid 
payment  to  the  agent,  and  to  maintain  an  action  himself  against 
the  buyer  to  recover  the  price  of  the  goods;  or  to  pursue  his  goods, 
or  the  notes  taken  for  them,  into  the  hands  of  third  parties,  pre- 
cisely as  if  no  del  credere  contract  existed.  And,  though  such  right 
in  the  principal  would  seem  to  consist  only  with  a  collateral  under- 
taking by  the  agent,  yet,  in  the  contract  del  credere,  being  sui 
generis,  it  is  held  in  nowise  to  change  the  original  and  independent 
character  of  the  agent's  undertaking  to  his  principal."  Per  Alvey, 
J.,  in  Lewis  v.  Brehme,  33  Md.  412,  3  Am.  Rep.  190. 


§  109)  DUTIES  OF  PRINCIPAL,  TO  AGENT.  439 

CHAPTER  XVI. 

DUTIES  OP  PRINCIPAL,  TO  AGENT. 

109.  Duties  of  Principal  to  Agent— In  General. 

110.  Duty  to  Remunerate. 

111.  Implied  Contract. 

112.  Right  to  Remuneration— Performance  by  Agent 

113.  Same— Performance    Prevented— Employment    at   will    of 

Principal. 

114.  Revocation  In  Breach  of  Contract. 

115.  Revocation  by  Operation  of  Law. 

116.  Renunciation  by  Agent. 

117.  Agent's  Misconduct  or  Breach  of  Duty. 

118.  Duty  to  Reimburse  and  Indemnify. 

119.  Illegal  Transactions. 

120.  Rights  of  Subagent 

121.  Personal  Remedies  of  Agent 

122.  Lien  of  Agent— Particular  Lien. 

123.  General  Lien. 

124.  Lien  Possessory. 

125.  Lien  of  Subagent 

126.  Right  of  Stoppage  In  Transltu. 

DUTIES  OF  PRINCIPAL  TO  AGENT— IN  GENERAL. 

109.   It  Im  the  duty  of  the  principal— 

(1)  To   pay  the  agent  the   remuneration   agreed   upon; 

(2)  To    reimburse    the    agent    for    expenses    incurred    in    the 

execution    of   his    authority; 

(3)  To  indemnify  the  agent  against  the  consequences  of  acts 

performed  in  the  execution  of  the  agency. 

Duty  of  Master  to  Servant. 

It  is  the  duty  of  the  master  to  exercise  ordinary  care  to 
protect  his  servants  from  injury  while  in  his  employment, 
which  includes  the  duty  to  provide  a  safe  place  to  work  and 
proper  instrumentalities  for  the  performance  of  the  work; 
the  duty  to  select  competent  fellow  servants  in  sufficient 
number;  and  the  duty  to  establish  proper  rules  for  the 


440  DUTIES  OP  PRINCIPAL  TO   AGENT.  (Ch.  16 

safe  transaction  of  the  work.  The  master  does  not  guar- 
anty the  safety  of  the  servant,  who  assumes  the  ordinary 
risks  incident  to  the  employment  and  known  dangers,  and 
the  risk  of  negligence  from  fellow  servants.  The  relation 
of  fellow  servant  is  commonly  tested  by  the  doctrine  of  vice 
principal,  who  for  the  purpose  of  the  test  is  generally  held 
to  be  one  who,  regardless  of  the  grade,  is  actually  engaged 
in  the  discharge  of  some  positive  duty  owed  by  the  com- 
mon master  to  his  servants.  Although  the  servant  assumes 
the  risk  of  the  negligence  of  fellow  servants,  he  does  not  as- 
sume that  of  the  master ;  and,  if  his  negligence  concurs  with 
that  of  a  fellow  servant  to  produce  the  injury,  the  servant 
may  recover,  provided  his  own  negligence  does  not  con- 
tribute thereto.  These  questions,  which  concern  the  law  of 
master  and  servant,  are  beyond  the  scope  of  this  book,  and 
the  student  is  referred  to  the  books  upon  master  and  serv- 
ant, torts,  and  negligence  for  a  consideration  of  them.1 

DUTY  TO  REMUNERATE. 

110.  An    obligation   on    the    part    of   the   principal   to    remu- 

nerate the  agent  for  his  services  arises  only  by  virtue 
of  an  express  or  implied  contract.* 

SAME— IMPLIED  CONTRACT. 

111.  Where    the    agent    performs    services    on    behalf    of    the 

principal  at  his  express  or  implied  request,  and  there 
is  no  express  contract  providing  for  remuneration, 
unless  the  circumstances  of  the  employment  are  such 
that  it  may  reasonably  be  inferred  that  the  services 
are  to  be  performed  without  remuneration  a  promise 
to  pay  remuneration  will  be  implied. 

In  General. 

Ordinarily,  an  agent  performing  services  for  his  principal 
is  entitled  to  remuneration,  but  a  right  to  remuneration  is 

§  109.    *  These  topics  are  fully  treated  in  the  Hornbook  Series  In 
Barrows,  Negligence,  c.  3,  and  Jaggard,  Torts,  c.  13. 
§§  110-111.     i  See  Bowstead,  Dig.  Ag.  art.  61. 


§§  110-111)  DUTY   TO   REMUNERATE.  441 

not  necessarily  incidental  to  the  relation,  for  the  agent  may 
undertake  to  perform  gratuitously.2  The  existence  of  a  right 
to  remuneration  and  the  amount  thereof  must  in  each  case 
depend  upon  the  express  or  implied  terms  of  the  contract 
of  employment.3  To  a  great  extent  this  branch  of  the  sub- 
ject is  governed  by  the  rules  which  apply  to  other  contracts, 
and  the  student  is  referred  to  the  works  upon  contracts  and 
quasi  contracts  for  a  fuller  treatment. 

Express  Agreement. 

Where  there  is  an  express  contract  or  agreement  provid- 
ing for  the  remuneration  of  the  agent,  the  right  to  remunera- 
tion will,  of  course,  be  determined  by  its  terms,  and  no  terms 
inconsistent  with  the  terms  expressed  will  be  implied.4 
Hence,  if  it  is  expressly  agreed  that  the  agent  is  to  serve 
without  reward,  he  can  acquire  no  right  thereto,  however 
valuable  his  services.  And  if  it  is  agreed  that  the  principal 
may  determine  what  remuneration,  if  any,  is  to  be  given, 
the  agent  has  no  absolute  right  to  remuneration.5  Again,  if 
it  agreed  that  the  agent  is  to  receive  remuneration  only  upon 
performing  specified  services  or  in  a  certain  contingency, 
the  performance  of  the  services  specified  or  the  happening  of 
the  contingency  is  a  condition  precedent  to  his  right  to  re- 
cover, and  if  the  condition  is  not  fulfilled  there  can  be  no  re- 
covery upon  a  quantum  meruit.*  On  the  other  hand,  if  the 

*  See  Story,  Ag.  §  323  et  seq. 

«  Reeve  v.  Reeve,  1  F.  &  F.  280. 

«  Bower  v.  Jones,  8  Bing.  65;  Green  v.  Mules,  30  I..  J.  C.  P.  343; 
Hinds  v.  Henry,  36  N.  J.  Law,  328;  Wallace  v.  Floyd,  29  Pa.  184, 
72  Am.  Dec.  620. 

s  Taylor  v.  Brewer,  1  M.  &  S.  290;  Roberts  v.  Smith,  5  M.  &  W. 
114. 

Otherwise,  If  some  payment  is  to  be  made  but  the  amount  Is  left 
to  the  employer,  In  which  case  the  agent  may  recover  such  amount 
as  the  employer,  acting  in  good  faith,  ought  to  award.  Bryant  v. 
Flight,  5  M.  &  W.  114;  Butler  v.  Mill  Co.,  28  Minn.  205,  9  N.  W. 
697,  41  Am.  Rep.  277. 

«  Green  v.  Mules,  30  L.  J.  C.  P.  343;  Moffatt  v.  Lawrie,  15  C.  B. 
583;  Walker  v.  Tirrell,  101  Mass.  257,  3  Am.  Rep.  352;  Zerrahn  v. 


442  DUTIES  OF  PRINCIPAL  TO  AGENT.  (Ch.  16 

condition  is  fulfilled  evidence  of  a  custom  making  the  pay- 
ment of  commissions  dependent  upon  other  conditions  is  in- 
admissible.' 

Implied  Agreement. 

More  frequently  the  agent's  right  to  compensation  is  not 
governed  by  express  agreement,  but  rests  upon  an  implied 
promise.  Prima  facie  a  promise  to  remunerate  is  to  be  im- 
plied from  a  request  to  perform,  for  it  is  a  reasonable  in- 
ference that  one  man  will  not  serve  another  without  reward.8 
The  request  may  be  implied  as  well  as  express.  A  person  is 
under  no  obligation  to  pay  for  services  which  he  has  not  re- 
quested, but  a  request  may  be  implied  from  conduct,  as 
where  a  person  having  knowledge  that  services  are  being 
performed  on  his  behalf  maintains  silence,  and  receives  the 
accruing  benefit  without  dissent.9 

The  implied  promise  is  ordinarily  to  pay  a  reasonable  re- 
muneration; that  is,  whatever  the  services  are  reasonably 
worth.10  In  commercial  agencies  the  compensation  usually 
takes  the  form  of  a  commission,  or  the  allowance  of  a 
certain  percentage  upon  the  amount  or  value  of  the  business 
done.  The  commissions  of  brokers,  factors,  auctioneers,  and 
other  commercial  agents  are  commonly  regulated  by  the 
usage  or  custom  of  the  particular  business  at  the  place  where 

Ditson,  117  Mass.  553;  Franklin  v.  Robinson,  1  Johns.  Ch.  (N.  Y.) 
157;  Hinds  v.  Henry,  36  N.  J.  Law,  328;  Jones  v.  Adler,  34  Md. 
440;  Fultz  v.  Wimer,  34  Kan.  576,  9  Pac.  316. 

7  Bower  v.  Jones,  8  Bing.  65. 

8  Manson  v.  Baillie,  2  Macq.  H.  L.  Gas.  80;   Martin  v.  Roberts  (0. 
C.)  36  Fed.  217;   Lewis  v.  Trickey,  20  Barb.  (N.  Y.)  387;    Mangum 
v.  Ball,  43  Miss.  288,  5  Am.  Rep.  488. 

»McCrary  v.  Ruddick,  33  Iowa,  521;  Wood  v.  Brewer,  66  Ala. 
570;  Weston  v.  Davis,  24  Me.  374.  See,  also,  Garrey  v.  Stadler,  67 
Wis.  512,  30  N.  W.  787,  58  Am.  Rep.  877;  Westgate  v.  Monroe,  100 
Mass.  227;  Peacock  v.  Peacock,  2  Camp.  45. 

10  Vilas  v.  Downer,  21  Vt.  419;  Weeks  v.  Holmes,  12  Gush. 
(Mass.)  215;  Ruckman  v.  Bergholz,  38  N.  J.  Law,  531;  Van  Arman 
v.  Byington,  38  111.  443;  Millar  v.  Cuddy,  43  Mich.  273,  5  N.  W. 
316,  38  Am.  Rep.  181;  Eggleston  v.  Boardman,  37  Mich.  14. 


§§  110-111)  DUTY   TO   REMUNERATE.  443 

the  agent  is  employed.11  In  such  cases,  if  it  is  to  be  infer- 
fed  that  the  parties  contract  upon  the  basis  of  the  cus- 
tom or  usage,  the  amount  and  conditions  of  remuneration 
will  be  determined  thereby.18 

Same — Gratuitous  Services. 

Although  a  promise  to  remunerate  is  prima  facie  to  be  im- 
plied from  a  request  to  perform,  it  by  no  means  follows  that 
in  every  case  such  an  implication  arises,  for  the  circumstances 
may  indicate  that  it  is  the  intention  of  the  parties  that  the 
services  are  to  be  rendered  gratuitously.18  Such  intention 
may  be  indicated  in  many  ways.  Thus,  where  the  parties 
stand  in  the  relation  of  parent  and  child,  or  even  are  merely 
members  of  the  same  family,  a  promise  to  remunerate  will 
not  be  implied  from  the  mere  request,  but  it  will  be  as- 
sumed that  the  consideration  or  motive  moving  to  perform- 
ance is  one  of  duty  or  affection,  and  in  order  to  entitle  the 
agent  to  compensation  it  must  appear  that  there  was  an 
actual  promise  to  compensate,  or  that  other  circumstances 
exist  from  which  a  promise  may  be  implied.14  So,  serv- 
ices are  sometimes  rendered  with  a  view  to  obtaining  a  con- 
tract of  employment,  under  circumstances  which  show  that 
there  is  no  expectation  of  reward  unless  the  services  result 
in  such  employment,  as  where  an  engineer  or  architect  puts 
in  a  bid  for  the  construction  of  works  and  furnishes  plans 

11  Story,  Ag.  §  326. 

12  Read  v.  Rann,  10  B.  &  C.  438;    Broad  v.  Thomas,  7  Bing.  99; 
Stanton  v.  Embrey,  93  U.  S.  548,  23  L.  Ed.  983. 

isQsboru  v.  Governors  of  Guy's  Hospital.  2  Str.  728;  Baxter  v. 
Gray,  3  M.  &  G.  771;  Hill  v.  Williams,  59  N.  C.  242;  Morris  v. 
Barnes,  35  Mo.  412;  Montgomery  v.  Insurance  Co.,  38  C.  C.  A.  553, 
97  Fed.  913,  919. 

i*  Hall  v.  Hall,  44  N.  H.  293;  Briggs  v.  Briggs,  46  Vt.  571;  Mor- 
ton v.  Rainey,  82  111.  215,  25  Am.  Rep.  311;  Oxford  v.  McFarland, 
3  Ind.  156;  Byrnes  v.  Clark.  57  Wis.  13,  14  N.  W.  815;  Scully  v. 
Scully's  Ex'r,  28  Iowa,  548;  Cowan  v.  Musgrave,  73  Iowa,  384,  35 
N.  W.  496;  Hill  v.  Hill,  121  Ind.  255,  23  N.  B.  87.  See  Clark, 
Contr.  28,  29,  and  cases  cited. 


444  DUTIES  OP  PRINCIPAL  TO  AGENT.  (Ch.  16 

and  specifications,  where  there  is  no  agreement  to  pay  there- 
for in  case  of  nonacceptance.18  In  the  absence  of  peculiar 
circumstances,  however,  if  the  person  employed  is  one  who 
makes  it  his  business  to  act  as  agent,  as  an  auctioneer,  bro- 
ker, factor,  or  attorney,  a  promise  to  remunerate  is  always 
implied.16 

/Services  not  upon  Request — Ratification. 

No  obligation  rests  upon  a  person  to  pay  for  services  ren- 
dered without  his  request.  On  the  other  hand,  as  we  have 
seen,  ratification  invests  the  agent  with  the  same  rights  as 
if  the  transaction  had  been  previously  authorized ;  and  con- 
sequently, where  an  agent  has  performed  an  act  upon  be- 
half of  his  principal  in  excess  of  his  authority,  or  a  stranger 
has  assumed  to  act  as  agent  of  another,  if  such  person  elects 
to  ratify  the  act  he  assumes  the  burdens  incidental  thereto, 
and  the  agent  may  look  to  him  for  remuneration.17  Ratifi- 
cation can,  however,  have  no  greater  force  than  previous 
authority;  and,  if  the  service  was  intended  to  be  gratuitous, 
ratification  will  not  render  the  principal  liable  to  remunerate 
the  agent.18 

IB  Palmer  v.  Inhabitants  of  Haverhill,  98  Mass.  483;  Scott  v. 
Maier,  56  Mich.  554,  23  N.  W.  218,  56  Am.  Rep.  402.  See,  also, 
Moffatt  v.  Lawrie,  15  C.  B.  583. 

i«  Manson  v.  Baillie,  2  Macq.  H.  L.  Gas.  80;  Martin  v.  Roberts 
(C.  C.)  36  Fed.  217. 

"  Ante,  p.  86. 

is  Allen  v.  Bryson,  67  Iowa,  591,  25  N.  W.  820,  56  Am.  Rep.  358. 
See,  also,  Dearborn  v.  Bowman,  3  Mete.  (Mass.)  155;  Bartholomew 
v.  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am.  Dec.  237;  Osier  T.  Hobbs, 
33  Ark.  215;  Clark,  Contr.  198. 


§  112)  RIGHT   TO    REMUNERATION.  445 


RIGHT  TO  REMUNERATION— PERFORMANCE  BY  AGENT. 

112.  When  an  agent  is  employed  to  perform  services  for  re- 
muneration, he  is  entitled  to  that  remuneration,  un- 
less the  contract  otherwise  provides,  as  soon  as  he 
has  performed  the  stipulated  services,  although  the 
principal  acquires  no  benefit  therefrom. 

If,  by  the  express  or  implied  terms  of  the  contract  of  em- 
ployment, the  remuneration  of  the  agent  is  dependent  upon 
the  performance  of  certain  services,  performance  is,  of 
course,  a  condition  of  his  right  to  recover  the  remuneration 
promised.1  On  the  other  hand,  if  the  agent  has  fully  per- 
formed,2 or  has  substantially  performed,3  his  undertaking, 
he  is  entitled  to  the  remuneration  promised;  and  in  such 
case  it  is  immaterial  that  his  services  have  not  been  bene- 
ficial to  the  principal,  whether  this  result  has  been  brought 
about  by  the  conduct  of  the  principal  or  by  that  of  a  third 
person.4  Thus,  if  a  broker  is  employed  to  procure  a  loan, 
and  procures  a  person  who  is  ready  and  able  to  loan  upon 
the  terms  prescribed  by  the  contract  of  employment,  the 
agent  has  earned  his  commission,  although  the  principal  fails 
to  accept  the  loan.'  So,  if  a  broker  is  employed  to  procure 

§  112.  i  Cook  v.  Fiske,  12  Gray  (Mass.)  491.  See  cases  cited, 
ante,  p.  441,  note  6. 

2  Lockwood  v.  1,-evick,  8  C.  B.  (N.  S.)  603;  Pearson  v.  Mason,  120 
Mass.  53;  Leete  v.  Morton,  43  Conn.  219;  Love  v.  Miller,  53  Ind. 
294,  21  Am.  Rep.  192. 

s  Horsford  v.  Wilson.  1  Taunt.  12;  Rimmer  v.  Knowles,  30  L. 
T.  496,  22  W.  R.  574;  Desmond  v.  Stebbins,  140  Mass.  339,  5  N.  E. 
150. 

*  Evans,  Ag.  336. 

Where  an  agent  is  entitled  to  commissions  on  orders,  a  refusal  to 
accept,  merely  to  defeat  the  right  to  commissions,  will  not  defeat 
such  right.  Jacquin  v.  Boutard,  89  Hun,  437,  35  N.  Y.  Supp.  496, 
affirmed  157  N.  Y.  686,  51  N.  E.  1091;  Taylor  v.  Morgan's  Sons  Co., 
124  N.  Y.  184,  26  N.  E.  314. 

B  Green  v.  Lucas,  33  L.  T.  (N.  S.)  584;  Fisher  v.  Drewett,  48  L. 
J.  Ex.  32;  Vinton  v.  Baldwin,  88  Ind.  104,  45  Am.  Rep.  447. 


446  DUTIES  OF  PRINCIPAL  TO  AGENT.  (Ch.  16 

a  purchaser,  and  does  procure  a  purchaser  who  is  ready  and 
able  to  buy  upon  the  terms  prescribed,  the  agent  has  earned 
his  commission,  although  the  principal  refuses  to  sell.8  So, 
if  an  agent  is  to  receive  a  commission  upon  sales  made,  he  is 
entitled  to  his  commission  upon  such  sales  although  the  prin- 
cipal is  unable  to  execute  them.7  What  acts  on  the  part 
of  the  agent  are  a  sufficient  performance  must,  of  course, 
depend  upon  the  terms  of  the  particular  contract  of  em- 
ployment, and  where  the  contract  is  not  express  will  often 
depend  upon  the  usage  or  custom  of  the  business  in  which 
he  is  employed.  A  broker  is  not  entitled  to  a  commission 
upon  a  sale  or  other  transaction  unless  his  services  are  the 
efficient  cause,8  but  if  the  transaction  is  brought  about  by 
his  agency  he  is  entitled  to  his  commission  upon  it,  although 
it  is  in  fact  carried  on  and  completed  by  the  principal.9 

•  Horsford  v.  Wilson,  1  Taunt.  12;  McGavock  v.  Woodlief,  20 
How.  (U.  S.)  221,  15  L.  Ed.  884;  Mooney  v.  Elder,  56  N.  Y.  238; 
Wylie  v.  Bank,  61  N.  Y.  415;  Eraser  v.  Wyckoff,  63  N.  Y.  445; 
Duclos  v.  Cunningham,  102  N.  Y.  678,  6  N.  E.  790;  Hinds  v.  Henry, 
36  N.  J.  Law,  328;  Parker  v.  Walker,  86  Tenn.  566,  8  S.  W.  391; 
Hamlin  v.  Schulte,  34  Minn.  534,  27  N.  W.  301;  Cassady  v.  Seeley, 
69  Iowa,  509,  29  N.  W.  432;  Desmond  v.  Stebbins,  140  Mass.  339, 
5  N.  E.  150. 

If  the  agent  procures  a  purchaser  who  is  able,  ready,  and  willing, 
he  is  entitled  to  compensation,  though  the  purchaser  refuse  to  carry 
out  the  contract,  and  could  not  be  compelled  to  do  so  if  he  set  up 
the  statute  of  frauds.  Holden  v.  Starks,  159  Mass.  503,  34  N.  E. 
1069,  38  Am.  St.  Rep.  451.  But  see  Gilchrist  v.  Clarke,  86  Tenn.  583, 
8  S.  W.  572. 

7  Lockwood  v.  Levick,  8  C.  B.  (N.  S.)  603.     See,  also,  Tyler  v.  E. 
G.  Bernard  Co.  (Tenn.  Ch.  App.)  57  S.  W.  179. 

8  Tribe  v.  Taylor,  1,  C.  P.  D.  505;    Wylie  v.  Bank,  61  N.  Y.  415; 
Earp  v.  Cummins,  54  Pa.  394,  93  Am.  Dec.  718. 

»  Green  v.  Bartlett,  14  C.  B.  (N.  S.)  681;  Wilkinson  v.  Martin,  8 
C.  &  P.  1;  Lincoln  v.  McClatchie,  36  Conn.  136;  Sussdorfl  v. 
Schmidt,  55  N.  Y.  319;  Jones  v.  Adler,  34  Md.  440. 


§§  113-115)  EIGHT  TO   REMUNERATION.  447 


SAME— PERFORMANCE    PREVENTED— EMPLOYMENT    AT 
WILL  OF  PRINCIPAL. 

113.  Where  the  employment  in   at  the  trill  of  the  principal, 

and  the  authority  is  revoked  after  partial  performance, 
whether  the  agent  is  entitled  to  remuneration  for 
what  he  has  done  depends  upon  the  express  ox  implied 
terms  of  the  contract. 

SAME— REVOCATION  IN  BREACH  OF  CONTRACT. 

114.  Where  the  principal,  in  breach  of  an  express  or  implied 

contract,  revokes  the  authority  of  the  agent  or  other- 
wise prevents  him  from  earning  his  remuneration,  the 
agent  is  entitled  (1)  to  treat  the  contract  as  rescinded 
and  recover  upon  a  quantum  mernit  for  services  ren- 
dered; or  (2)  to  recover  damages  for  the  loss  resulting 
from  the  breach. 

SAME— REVOCATION    BY    OPERATION    OF    LAW. 

115.  Where    the    contract    of    employment    is    discharged    by 

operation  of  law,  the  agent  or  his  representatives  may, 
as  a  rule,  recover  upon  a  quantum  meruit  to  the  ex- 
tent of  services  rendered. 

Revocation  by  Act  of  Principal. 

As  we  have  seen,  the  principal  has  the  power,  although 
not  always  the  right,  to  revoke  the  authority  of  his  agent  at 
any  time.1  In  other  words,  the  exercise  of  the  power  of 
revocation  is  without  prejudice  to  any  claim  for  damages 
that  the  agent  may  have  for  breach  of  the  contract  of  em- 
ployment. 

Same — Contract  of  Employment  at  Will  of  Principal. 

Where  the  principal  has  the  right  as  well  as  the  power  to 
terminate  the  employment  at  his  will,  the  question  whether 
the  agent  is  entitled  to  remuneration  for  services  already 
performed  depends  upon  the  express  or  implied  terms  of 

§§  113-115.     i  Ante,  p.  136. 


448  DUTIES  OF  PRINCIPAL  TO  AGENT.  (Gh.  16 

the  contract.  It  is,  of  course,  competent  for  the  parties  to 
contract  upon  such  terms  that  the  agent  takes  the  risk  of 
revocation  of  authority  or  discharge  from  employment,  and 
shall  be  entitled  to  no  remuneration  in  case  of  revocation  or 
discharge  before  full  performance.2  On  the  other  hand, 
where  the  contract  of  employment  contemplates  that  the 
agent  shall  incur  trouble  and  expense,  although  the  employ- 
ment be  terminable  at  the  will  of  the  employer,  a  promise 
to  pay  the  agent  reasonable  remuneration  for  the  trouble 
which  he  may  actually  incur  will  ordinarily  be  implied.8  The 
contract  may,  of  course,  expressly  provide  for  such  re- 
muneration in  the  event  of  revocation.4 

Same — Revocation  in  Breach  of  Contract  of  Employment. 

Where  the  contract  of  employment  is  for  a  definite  term, 
and  the  principal  without  just  cause  revokes  the  agent's  au- 

*  Where  an  agent  was  employed  to  sell  an  advowson,  and  without 
communicating  with  him  the  principal  sold  the  living  himself,  it  was 
held,  in  an  action  charging  wrongful  revocation  of  authority,  that  in 
the  absence  of  evidence  of  expense  incurred  the  agent  could  recover 
nothing.    "I  take  it  to  be  admitted,"  said  Jervis,  C.  J.,  "that  it  is 
not  competent  to  a  principal  to  revoke    *    *     *    without  paying  for 
labor  and  expenses  incurred.     *     *     *    A  general  employment  may 
carry  with  it  a  power  of  revocation  on  payment  only  of  a  compen- 
sation for  what  may  have  been  done  under  it;    but  there  may  also 
be  a  qualified  employment  under   which  no  payment  shall  be  de- 
mandable  if  countermanded.    In  the  present  case  I  think  the  em- 
ployment of  the  qualified  class    *     *     *    the  plaintiffs  undertaking 
the  business  upon  an  understanding  that  they  were  to  have  nothing 
if  they  did  not  sell  the  advowson,  taking  the  chance  of  the  larger 
remuneration   they    would   have   received   if   they   had    succeeded." 
Simpson  v.  Lamb,  17  C.  B.  603.    See,  also,  Read  v.  Rann,  10  B.  &  O. 
438;    Broad  v.  Thomas,  7  Bing.  99;    Coffin  v.  Landis,  46  Pa.  426; 
Spear  v.  Gardner,  16  La.  Ann.  388. 

» Simpson  v.  Lamb,  17  C.  B.  603.  See,  also,  U.  S.  v.  Jarvis, 
Dav.  (U.  S.)  274,  Fed.  Gas.  No.  15,468;  Blackstone  v.  Buttermore, 
53  Pa.  266;  Chambers  v.  Seay,  73  Ala.  372,  378;  Urquhart  v.  Mort- 
gage Co.,  85  Minn.  69,  88  N.  W.  264. 

*  Re  London  &  S.  Bank,  L.  R.  9  Eq.  149;   Re  Imperial  Wine  Co., 
L.  R.  14  Eq.  417. 


§§  113-115)  EIGHT  TO   REMUNERATION.  449 

thority  or  otherwise  terminates  the  employment,  the  agent 
is  entitled  to  the  usual  remedies  for  breach  of  contract.8 
Like  a  servant  who  is  wrongfully  discharged,  he  may  pursue 
either  of  two  remedies:  (i)  He  may  treat  the  contract  as 
rescinded  and  sue  his  employer  upon  a  quantum  meruit  for 
any  services  actually  rendered,  based  upon  an  implied  or 
quasi  contract ;  *  (2)  he  may  maintain  an  action  upon  the  orig- 
inal contract  to  recover  damages  for  the  loss  resulting  from 
its  breach.7 

If  he  elects  the  latter  remedy,  he  may  sue  at  once  and 
recover  the  probable  damages  for  the  breach,8  or  he  may 
wait  until  expiration  of  the  term,  and  sue  for  the  actual 
damages  he  has  sustained."  Whether  he  sues  at  once,  or 
not  until  after  expiration  of  the  term,  the  measure  of  dam- 
ages is  prima  facie  the  amount  of  remuneration  provided  by 
the  contract,  but  it  is  open  to  the  defendant  to  reduce  the 
amount  of  the  recovery  by  proof  of  the  amount  which  the 

5  Clark,  Contr.  693;  Smith,  Mast.  &  S.  96;  Wood,  Mast.  &  S. 
§  127. 

«  Phillips  v.  Wiginton,  1  Ad.  &  E.  333;  Prickett  v.  Badger,  1  C. 
B.  (N.  S.)  296;  Howard  v.  Daly,  61  N.  Y.  362,  369,  19  Am.  Rep.  285: 
Derby  v.  Johnson,  21  Vt  17;  Brinkley  v.  Swicegood,  65  N.  C.  626; 
Britt  v.  Hays,  21  Ga.  157;  Urquhart  v.  Mortgage  Co.,  85  Minn.  69, 
88  N.  W.  264. 

7  Goodman  v.  Pocock,  15  Q  B.  576;  Howard  v.  Daly,  61  N.  Y. 
362,  19  Am.  Rep.  285;  Moody  v.  Leverich,  4  Daly  (N.  Y.)  401;  Derby 
v.  Johnson,  21  Vt.  17;  Miller  v.  Goddard,  34  Me.  102,  56  Am.  Dec. 
638;  Strauss  v.  Meertief,  64  Ala.  299,  38  Am.  Rep.  8;  James  v. 
Allen  Co.,  44  Ohio  St.  226,  6  N.  E.  246,  58  Am.  Rep.  821. 

s  Pierce  v.  Railroad  Co.,  173  U.  S.  1,  19  Sup.  Ct.  335,  43  L.  Ed 
591;  Cutter  v.  Gillette,  163  Mass.  95,  39  N.  E.  1011;  Sutherland  v. 
Wyer,  67  Me.  64;  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285; 
Britt  v.  Hays,  21  Ga.  157. 

»  Cutter  v.  Gillette,  163  Mass.  95,  39  N.  E.  1011;  Remelee  v.  Hall, 
31  Vt.  582,  76  Am.  Dec.  140;  Sutherland  v.  Wyer,  67  Me.  64. 

In  some  cases  it  has  been  held  that  if  action  be  brought  before 
expiration  of  the  term  damages  can  be  allowed  only  to  the  time  of 
trial.  Fowler  v.  Armour,  24  Ala.  194;  Gordon  v.  Brewster,  7  Wis. 
355;  Litchenstein  v.  Brooks,  75  Tex.  196,  12  S.  W.  975.  See,  also. 
Everson  v.  Powers,  89  N.  Y.  527,  42  Am.  Rep.  319. 
TIFF.P.&  A.-29 


450  DUTIES  OP  PRINCIPAL  TO  AGENT.  (Ch.  16 

agent  in  the  one  case  might  have  earned  by  the  exercise  of 
reasonable  diligence  in  seeking  employment  in  similar  busi- 
ness,10 and  in  the  other  case  by  the  amount  which,  in  the 
interim,  he  has  actually  earned  or  which  he  might  have 
earned  with  reasonable  diligence.11  The  burden  rests  upon 
the  defendant  to  show  that  the  plaintiff  has  or  might  have  se- 
cured other  employment.12  But  while  it  is  the  duty  of  the 
discharged  employe  to  seek  other  employment,  at  the  risk  of 
having  his  recovery  reduced  by  the  amount  which  he  might 
thereby  have  earned,  he  is  not  bound  to  seek  employment 
of  a  different  character  or  in  a  different  locality  or  with 
an  objectionable  person.18 

It  was  formerly  held  in  England  that  'a  servant  or  agent 
who  was  wrongfully  discharged  might  elect  to  treat  the  con- 
tract as  continuing,  and  by  holding  himself  in  readiness  to 
perform  until  expiration  of  the  term  of  employment  then 
have  the  right  to  recover  his  wages  for  the  term,  upon  the 
ground  of  constructive .  service.14  This  doctrine  has  been 
repudiated  in  England,  and  generally  in  the  United  States,15 
although  it  prevails  in  some  states.18  By  the  generally  ap- 

10  Pierce  v.  Railroad  Co.,  173  U.  S.  1,  19  Sup.  Ct.  335,  43  I>.  Ed. 
591;    Cutter  v.  Gillette,  163  Mass.  95,  39  N.  E.  1011;   Sutherland  v. 
Wyer,  67  Me.  64;    Hamilton  v.  Love,  152  Ind.  641,  53  N.  E.  181,  54 
N.  E.  437,  71  Am.  St.  Rep.  384. 

11  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641;    Howard  v.  Daly,  61 
N.  Y.  362,  19  Am.  Rep.  285;    Sutherland  v.  Wyer,  67  Me.  64;    Horn 
v.  Association,  22  Minn.  233. 

12  Howard  v.  Daly,  61   N.  Y.  362,   19  Am.  Rep.  285.     See,   also, 
cases  cited  note  10. 

is  Costigan  v.  Railroad  Co.,  2  Demo  (N.  Y.)  609,  43  Am.  Dec. 
758;  Strauss  v.  Meertief,  64  Ala.  299,  38  Am.  Rep.  8;  Wood,  Mast. 
&  S.  p.  250. 

i*  Gandell  v.  Pontigny,  4  Camp.  375. 

IB  Elderton  v.  Emmens,  6  C.  B.  178;  Goodman  v.  Pocock,  15 
Q.  B.  576;  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285;  Moody 
v.  Leverich,  4  Daly  (N.  Y.)  401;  Hamill  v.  Poute,  51  Md.  419; 
James  v.  Allen  County,  44  Ohio  St.  226,  6  N.  E.  246,  58  Am.  Rep. 
821. 

is  Strauss  v.  Meertief,  64  Ala.  299,  38  Am.  Rep.  8;  Allen  v.  En- 
gineers' Co.,  196  Pa.  512,  46  Atl.  899. 


§§  113-115)  RIGHT  TO   REMUNERATION.  451 

proved  doctrine,  however,  the  employe,  unless  he  elects  to 
treat  the  contract  as  rescinded,  is  confined  to  an  action  for 
breach  of  contract ;  and  while  in  such  an  action  the  stipulated 
remuneration  is,  prima  facie,  the  measure  of  recovery,  this 
may  be  reduced,  as  has  been  explained,  by  the  amount  of 
what  he  has  or  ought  to  have  earned. 

The  same  principles  are  applicable  where  the  contract  of 
employment,  although  not  for  a  definite  term,  expressly  or 
impliedly  binds  the  employer  not  to  revoke  the  authority 
before  the  transaction  is  completed  or  otherwise  to  prevent 
the  agent  from  earning  his  commission.  As  we  have  seen, 
where  the  contract  contemplates  that  the  agent  shall  incur 
trouble  and  expense,  a  promise  to  pay  a  reasonable  re- 
muneration for  services  actually  rendered  in  the  event  of  a 
revocation  will  readily  be  implied.17  But  the  nature  and 
terms  of  such  an  employment  or  the  custom  or  usage  of 
the  particular  business  may  be  such  as  to  indicate  that  it 
is  the  understanding  that  the  authority  shall  not  be  revoked, 
or  the  agent  otherwise  be  prevented  from  earning  his  com- 
mission, before  the  agent  has  completed  the  transaction,  or, 
at  least,  until  he  has  had  a  reasonable  opportunity  to  com- 
plete it.  Thus,  it  has  been  said  that  a  broker  employed  to 
make  a  sale  is  usually  entitled  to  a  fair  and  reasonable  op- 
portunity to  perform,  subject  to  the  right  of  the  principal 
to  sell  independently.18  The  right  of  the  principal  to  revoke 

IT  Ante,  p.  448. 

is  Sibbald  v.  Iron  Co.,  83  N.  T.  378,  38  Am.  Rep.  441;  Inchebald 
v.  Western  Neilgherry  Coffee,  Etc.,  Co..  17  C.  B.  (N.  S.)  733;  Queen 
of  Spain  v.  Parr,  39  I/.  J.  Ch.  73;  Simpson  v.  Lamb,  17  C.  B.  603; 
Strong  v.  West,  110  Ga.  382,  35  S.  E.  693. 

Where  a  contract  with  an  agent  for  sale  provided  that  after  the 
agent  had  made  an  agreement  for  sale  the  owner  should  not  inten- 
tionally defeat  it,  nor  at  any  time  withdraw  the  property  from  sale 
without  giving  30  days'  notice,  and  the  owner  having  refused  to  be 
bound  by  an  authorized  agreement  for  sale,  or  to  execute  a  deed, 
the  agent  delivered  to  the  purchaser  the  contract  of  sale,  which  the 
latter  accepted  and  was  ready  to  perform,  the  agent  was  entitled  to 
recover  a  sum  equivalent  to  his  commissions.  Witherell  v.  Murphy, 
147  Mass.  417,  18  N.  E.  215. 


452  DUTIES  OP  PRINCIPAL,  TO  AGENT.  (Ch-  16 

the  authority  is  also  subject  to  the  requirements  of  good 
faith  upon  his  part.  Hence,  if  a  broker  has  instituted  nego- 
tiations which  are  approaching  success,  the  principal  is  not 
entitled  to  revoke  the  authority  with  a  view  to  concluding 
the  bargain  without  his  aid,  and  thus  avoiding  the  commis- 
sions about  to  be  earned.19 

The  principal  has,  of  course,  always  the  right  to  terminate 
the  agency  for  any  gross  breach  of  duty  upon  the  part  of 
the  agent.20 

Same — Revocation  Jyy  Operation  of  Law. 

As  a  rule  the  circumstances  which  by  operation  of  law 
terminate  the  authority  of  the  agent 21  also  operate  to  dis- 
charge the  contract  of  employment.  Thus,  upon  the  death  of 
the  employer,  the  agent  is  discharged  from  performance,22 
and  he  may  recover  only  upon  a  quantum  meruit  to  the  ex- 
tent of  his  performance.  So,  upon  the  death  28  or  physical  or 
mental  incapacity  24  of  the  agent,  the  contract  is  dischar- 
ged, and  he  or  his  personal  representatives  may  recover  up- 
on a  quantum  meruit,  subject  to  the  right  of  the  principal 

i»  Sibbald  v.  Iron  Co.,  83  N<  Y.  378,  38  Am.  Rep.  441. 

20  Sibbald  v.  Iron  Co.,  83  N.  Y.  378,  38  Am.  Rep.  441. 

If  the  broker  procures  an  offer  which  is  rejected,  there  being  no 
agreement  by  which  he  is  bound  to  accept  it,  and  the  negotiations 
are  voluntarily  abandoned  and  the  agency  is  terminated,  a  sale  to 
the  person  who  made  the  offer  does  not  render  the  owner  liable  for 
a  commission.  Fairchild  v.  Cunningham,  84  Minn.  521,  88  N.  W.  15. 

Post,  p.  454. 

21  Ante,  p.  143. 

22  Farrow  v.  Wilson,  L.  R.  4  C.  P.  744;    Yorrington  v.  Greene, 
7  R.  I.  589,  84  Am.  Dec.  578. 

Otherwise  in  case  of  bankruptcy.  Lewis  v.  Insurance  Co.,  61  Mo. 
534;  Vanuxem  v.  Bostwick  (Pa.)  7  Atl.  598. 

23  Wolfe  v.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388;    Clark  v.  Gil- 
bert, 26  N.  Y.  279,  84  Am.  Dec.  189;    Coe  v.  Smith,  4  Ind.  79,  58 
Am.  Dec.  618;   Underwood  v.  Lewis  [1894]  2  Q.  B.  306. 

24  Robinson  v.  Davison,  L.  R.  6  Ex.  269;    Boast  v.  Firth,  L.  R. 
C.  P.  1 ;   Fuller  v.  Brown,  11  Mete.  (Mass.)  440;   Fenton  v.  Clark,  11 
Vt.  557;   Hughes  v.  Wamsutta  Mills,  11  Allen  (Mass.)  201  (imprison- 
ment), but  see  Leopold  v.  Salkey,  89  111.  412,  31  Am.  Rep.  93;   Green 


§  116)  RIGHT  TO   REMUNERATION.  453 

to  have  the  recovery  reduced  by  the  amount  of  any  loss 
which  he  may  have  suffered  from  the  nonperformance  of 
the  contract.28  The  right  to  recover,  except  on  a  full  per- 
formance, may,  however,  be  excluded  by  the  express  terms  of 
the  contract.** 

SAME— RENUNCIATION    BT   AGENT. 

116.  Where  the  agent,  in  breach  of  an  entire  contract  of 
employment,  renounces  his  authority,  he  can  in  most 
jurisdictions  recover  nothing,  although  in  some  juris- 
dictions he  can  recover  upon  a  quantum  meruit. 

If  an  agent  without  legal  excuse  abandons  the  employ- 
ment before  full  performance,  he  can  recover  nothing  for 
his  services,  neither  upon  the  contract  of  employment,  be- 
cause under  an  entire  contract  performance  is  a  condi- 
tion precedent  to  the  right  of  recovery  thereon,  nor  upon  an 
implied  contract,  because  the  special  contract  controls  the 
rights  of  the  parties  in  respect  to  what  has  been  done  under 
it,  and  excludes  any  implied  contract.1  In  some  states,  how- 
ever, the  rule  has  been  so  far  relaxed  as  to  permit  a  recovery 
upon  a  quantum  meruit  to  the  extent  of  benefits  actually 
conferred,  the  amount  of  the  recovery,  if  any,  being  esti- 

v.  Gilbert,  21  Wis.  395;  Walsh  v.  Fisher,  102  Wis.  172,  78  N.  W. 
437.  43  L.  R.  A.  810,  72  Am.  St  Rep.  865  (violence  by  strikers). 

Prevalence  of  contagious  disease  is  a  discharge.  Lakeman  v.  Pol- 
lard, 43  Me.  463,  69  Am.  Dec.  77.  But  see  Dewey  v.  School  Dist, 
43  Mich.  480,  5  N.  W.  646,  38  Am.  Rep.  206.  See  Clark,  Contr.  683. 

25  Patrick  v.  Putnam,  27  Vt.  759;  Wolfe  v.  Howes,  20  N.  Y.  197, 
75  Am.  Dec.  388. 

2«  Cutter  v.  Powell,  6  T.  R.  320;   Clark,  Contr.  320. 

§  116.  i  Stark  v.  Parker,  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425; 
Olmstead  v.  Beale,  19  Pick.  (Mass.)  528;  Miller  v.  Goddard,  34  Me. 
102,  56  Am.  Dec.  638;  Hansell  v.  Erickson,  28  111.  257;  Thrift  v. 
Payne,  71  111.  408;  Peterson  v.  Mayer,  46  Minn.  468,  49  N.  W.  245, 
13  L.  R.  A.  72;  Diefenback  v.  Stark,  56  Wis.  462,  14  N.  W.  621,  43 
Am.  Rep.  719. 

Otherwise  of  an  infant.  Whitmarsh  v.  Hall,  3  Denio  (N.  Y.)  375; 
Widrig  v.  Taggart,  51  Mich.  103,  16  N.  W.  251. 


454  DUTIES  OF  PRINCIPAL  TO  AGENT.  (Ch.  16 

mated  at  the  contract  price,  with  deduction  of  what  it  would 
cost  to  procure  a  completion  of  the  residue  of  the  service 
and  also  of  any  damages  sustained  by  reason  of  the  breach.1 
Again,  the  right  to  remuneration  for  partial  performance 
may  be  expressly  or  impliedly  reserved,  as  where  the  con- 
tract provides  that  the  agent  may  quit  at  any  time  upon 
notice. 

SAME— AGENT'S  MISCONDUCT  OB  BREACH  OF  DUTY. 

117.  Where  the  agent  is  guilty  of  a  breach  of  any  fiduciary 
duty,  or  where  the  principal  derives  no  benefit  from 
the  agent's  services  in  consequence  of  his  gross  negli- 
gence or  other  breach  of  duty,  he  can  recover  no  re- 
muneration. 

It  has  already  been  pointed  out  that  for  a  breach  of  the 
agent's  duty  to  obey  instructions,  to  exercise  reasonable  care 
and  skill,  to  act  in  good  faith,  and  the  like,  the  principal  may 
terminate  the  agency  without  incurring  liability  on  that  ac- 
count,1 and  the  agent  will,  of  course,  lose  all  right  to  re- 
muneration for  further  services.  A  breach  of  duty  may  also 
have  the  effect  of  debarring  the  agent  from  recovering  re- 
muneration for  services  already  rendered.  That  such  is  the 
effect  of  violation  of  any  duty  arising  from  the  fiduciary  char- 
acter of  the  relation  is  universally  recognized,8  even  if  the 
transaction  is  adopted  by  the  principal.8  Thus,  if  the  agent  is 
guilty  of  fraud  or  bad  faith,  he  forfeits  all  claim  to  com- 
pensation.4 So  if  he  makes  a  sale  directly  or  indirectly  to 

s  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713;  McClay  v. 
Hedge,  18  Iowa,  66;  Parcell  v.  McComber,  11  Neb.  209,  7  N.  W. 
629,  38  Am.  Rep.  366.  See  Wood,  Mast.  &  S.  §  147. 

§  117.     i  Ante,  p.  452. 

«  Gray  v.  Haig,  20  Beav.  219;  In  re  Owens,  I.  R.  7  Eq.  235. 

»  Solomans  v.   Fender,  3  H.  &  C.  639. 

If  in  ignorance  of  the  fraud  the  principal  pays,  he  may  recover, 
McGar  r.  Adams,  65  Ala.  106. 

*  Wadsworth  v.  Adams,  138  U.  S.  380,  11  Sup.  Ct.  303,  34  L.  Ed. 
984;  Allen  v.  Pierpont  (C.  C.)  22  Fed.  582;  Blair  v.  Shaeffer  (C.  C.) 


§  117)  BIGHT  TO   REMUNERATION.  455 

himself  or  to  a  company  in  which  he  is  interested."  The 
right  of  the  agent  to  compensation  where  he  acts  for  both 
parties  has  already  been  considered.'  A  forfeiture  of  com- 
pensation may  also  result  from  negligence  of  the  agent.  If 
the  agent  is  guilty  of  gross  negligence  in  the  conduct  of  the 
business  intrusted  to  him,  so  that  the  principal  derives  no 
benefit  therefrom,  the  agent  is  entitled  to  no  remuneration; 7 
but  if,  notwithstanding  his  negligence,  the  services  are  of 
some  value  after  making  allowance  for  the  loss  sustained,  it 
seems  that  he  can  recover  their  reasonable  value.8  So  ren- 
dering false  accounts,  or  even  gross  neglect  to  keep  ac- 
counts and  preserve  vouchers,  works  a  forfeiture  of  commis- 
sions,9 although  a  mere  failure  to  render  an  account  at  the 
stipulated  time,10  or  irregularity  in  the  account  when  not 
fraudulent  and  admitting  of  explanation,  will  not  necessarily 
work  a  total  forfeiture,  and  may  simply  reduce  the  amount 
of  the  compensation  by  the  amount  of  any  necessary  dam- 

33  Fed.  218;  Sea  v.  Carpenter,  16  Ohio,  412;  Martin  v.  Bliss,  57 
Hun,  157.  10  N.  Y.  Snpp.  886;  Porter  v.  Silvers.  35  Ind.  295;  Brannan 
v.  Strauss,  75  111.  234;  Segar  v.  Parrish,  20  Grat.  (Va.)  672;  Urqu- 
hart  v.  Mortgage  Co.,  85  Minn.  69,  88  N.  W.  264. 

B  Solomans  v.  Pender,  3  H.  &  C.  639;  In  re  Owens,  L  R.  7  Eq. 
235;  Hofflein  v.  Moss,  14  C.  C.  A.  459,  67  Fed.  440;  Murray  v. 
Beard,  102  N.  Y.  505,  7  N.  E.  553;  McGar  v.  Adams,  65  Ala.  106; 
Hobson  v.  Peake,  44  La.  Ann.  383,  10  South.  762. 

«  Ante,  p.  41& 

T  Bracey  v.  Carter,  12  Ad.  &  E.  373;  Denew  v.  Daverell,  3  Camp. 
451;  Hurst  T.  Holding,  3  Taunt  32;  Fordyce  v.  Peper  (C.  C.)  16 
Fed.  516;  Dodge  v.  Tileston.  12  Pick.  (Mass.)  328;  Bledsoe  v.  Irvin. 
35  Ind.  293;  Fisher  v.  Dynes,  62  Ind.  348;  Sumner  v.  Reicheniker, 
9  Kan.  320. 

s  Lee  v.  Clements,  48  Ga.  128;  Rochester  v.  Levering,  104  Ind. 
5G2,  4  N.  E.  203. 

»  White  v.  Lincoln,  8  Ves.  Jr.  363;  Fordyce  v.  Peper  (C.  C.)  16 
Fed.  516;  Motley  v.  Motley,  42  N.  C.  211;  Ridgeway  v.  Ludlam, 
7  N.  J.  Eq.  123;  Smith  v.  Crews,  2  Mo.  App.  269;  Fish  v.  See- 
berger,  154  111.  30,  39  N.  E.  982. 

10  Sampson  v.  Iron  Works,  6  Gray  (Mass.)  120. 


456  DUTIES  OP  PRINCIPAL  TO  AGENT.  (Ch.  16 

ages.11    An  agent  is  entitled  to  no  compensation  for  an  un- 
authorized transaction  unless  the  principal  ratifies  it.11 


DUTY  TO  REIMBURSE  AND  INDEMNIFY. 

118.  It  is  the  duty  of  the  principal  to  reimburse  the  agent 
for  all  expenses,  advances,  and  disbursements  properly 
paid  or  incurred,  and  to  indemnify  him  against  the 
consequences  of  all  acts  properly  done  by  him  in  the 
execution  of  the  agency. 

Duty  to  Reimburse. 

"Speaking  generally,  the  agent  has  the  right  to  be  reim- 
bursed for  all  his  advances,  expenses,  and  disbursements 
incurred  in  the  course  of  the  agency,  made  on  account  of  or 
for  the  benefit  of  his  principal,  when  such  advances,  ex- 
penses, and  disbursements  are  reasonable,  and  have  been 
properly  incurred  and  paid  without  misconduct  on  the  part 
of  the  agent."  *  The  liability  of  the  principal  arises  from  an 
implied  contract,  a  request  to  undertake  an  agency  the 
proper  execution  of  which  may  involve  expenditure  on  the 
agent's  part  operating  as  an  implied  request  to  incur  such 
expenditure  and  as  an  implied  promise  to  repay.1  It  neces- 
sarily follows  that  the  agent  is  not  entitled  to  reimburse- 
ment in  respect  to  any  expenditure  incurred  without  the  ex- 
press or  implied  authority  of  the  principal.8  Nor  is  he  en- 
titled to  reimbursement  in  respect  to  any  expenditure  in- 

«  Jones  v.  Hoyt,  25  Conn.  374;  Lee  v.  Clements,  48  Ga.  128. 

12  Ante.  p.  444. 

§  118.  i  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct  950,  37  L.  Ed. 
819.  per  Jackson,  J.  See,  also,  Smith  v.  Lindo,  5  C.  B.  (N.  S.)  587; 
Frixione  v.  Tagliaferro,  10  Moore,  P.  C.  175;  Curtis  v.  Barclay,  7 
D.  &  R.  539,  5  B.  &  C.  141;  Bartlett  v.  Smith  (C.  C.)  13  Fed.  263; 
Rosenstock  v.  Tormey,  32  Md.  169,  3  Am.  Rep.  125;  Ruffner  v. 
Hewitt,  7  W.  Va.  585;  Armstrong  v.  Pease,  66  Ga.  70. 

2  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819. 

•  Warwick  v.  Slade,  3  Camp.  127  (authority  revoked);  Barren  v. 
Fitzgerald,  6  Bing.  N.  C.  201;  Keyes  v.  Inhabitants  of  Westford, 
17  Pick.  (Mass.)  273. 


§  118)  DUTY   TO   BEIMBURSE  AND  INDEMNIFY".  457 

curred  in  consequence  of  his  own  negligence  or  breach  of 
duty.4  Thus,  where  a  solicitor  undertook  a  prosecution, 
which  failed  in  consequence  of  the  negligent  way  in  which 
the  indictment  was  drawn,  he  was  not  entitled  to  recover 
his  disbursements." 

Duty  to  Indemnify, 

The  duty  of  the  principal  to  indemnify  the  agent  against 
losses  and  liabilities  which  are  the  consequences  of  the  acts 
done  by  him  in  the  execution  of  the  agency  rests  upon 
the  same  ground."  If  the  proper  execution  of  the  agency 
involves  or  may  involve  acts  from  which  loss  or  liability 
may  result,  the  request  to  undertake  the  agency  operates 
as  an  implied  promise  to  indemnify  the  agent  against  such 
loss  or  liability.7  Thus,  where  an  agent  sold  cotton  and  was 
obliged  to  refund  the  price  to  the  purchaser  on  account  of 
false  packing  by  the  principal,  he  was  allowed  to  recover  from 
him  the  amount  so  refunded.8  If,  in  the  proper  execution  of 
his  authority,  the  agent  becomes  personally  liable  upon  a 
contract  made  for  his  principal,  the  agent  can  look  to  the 
principal  for  any  damages  sustained  in  consequence."  So, 
if  an  agent  without  notice  of  adverse  title  sells  goods  under 
instructions  from  his  principal,  who  claims  them  as  owner, 
and  is  compelled  to  pay  to  the  true  owner  the  value  of  the 
goods,  the  agent  is  entitled  to  indemnity.10  And,  where 
an  agent  is  authorized  to  deal  in  a  particular  market  or 

*  Lewis  v.  Samuel,  8  Q.  B.  685;    Brown  v.  Clayton,  12  Ga.  574; 
Veltum  v.  Koehler,  85  Minn.  125,  88  N.  W.  432. 

«  Lewis  v.  Samuel,  8  Q.  B.  685. 

e  Bibb  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819. 

i  Hooper  v.  Treffey,  1  Ex.  17;  Cropper  v.  Cook,  L.  R.  8  C.  P.  199; 
Lacey  v.  Hill,  Crawley's  Claim,  L.  R.  18  Eq.  182;  D'Arcy  v.  Lyle, 
5  Bin.  (Pa.)  441;  Maltland  v.  Martin,  8(5  Pa.  120;  Powell  v.  Trustees, 
19  Johns.  (N.  Y.)  284;  Denny  v.  Wheelwright.  60  Miss.  733;  Save- 
land  v.  Green,  36  Wis.  612.  But  see  Halbronn  v.  International  Horse 
Agency  [1903]  1  K.  B.  270. 

»  Beach  v.  Branch,  57  Ga.  362. 

•  Greene  v.  Goddard,  9  Mete.  (Mass.)  212. 

10  Adamson  v.  Jarvis,  4  Bing.  66.  See,  also,  Drummond  v. 
Humphreys,  39  Me.  347;  Castle  v.  Noyes,  14  N.  Y.  329;  post,  p.  460. 


458  DUTIES  OF  PRINCIPAL,  TO  AGENT.  (Ch.  1C 

trade,  he  is  thereby  authorized  to  deal  according  to  the 
established  usage  thereof,  provided  the  usage  is  reasonable, 
and  not  inconsistent  with  his  instructions;  and  if,  in  ac- 
cordance with  such  usage,  he  incurs  expenses  or  liability,  he 
is  entitled  to  be  reimbursed  and  indemnified  on  that  ac- 
count.11 Thus,  where  brokers  were  compelled  by  the  rules 
of  the  New  York  Cotton  Exchange,  of  which  the  principal 
had  notice,  to  go  into  the  market  and  buy  cotton  to  cover 
their  contracts  for  future  delivery  on  their  principal's  ac- 
count, by  reason  of  his  failure  to  furnish  margins,  the  bro- 
kers were  entitled  to  recover  the  difference  between  the  price 
at  which  the  cotton  was  to  be  sold  and  the  increased  price  so 
paid  to  cover  the  contracts.12  No  indemnity  can  be  recov- 
ered for  a  loss  incurred  in  consequence  of  the  agent's  neg- 
ligence or  breach  of  duty.13 

11  Bayliffe  v.  Butterworth,  1  Ex.  425;  Taylor  v.  Stray,  2  C.  B. 
(N.  S.)  197;  Chapman  v.  Shepherd,  L.  R.  2  C.  P.  228;  Talcott  v. 
Smith,  142  Mass.  542,  8  N.  E.  413. 

Usage  must  be  so  general,  long  established,  and  notorious  that 
knowledge  of  it  may  be  presumed.  Earl  Fruit  Co.  v.  Warehouse 
Co.,  60  Minn.  351,  62  N.  W.  439. 

is  Bibb  v.  Allen,  149  U.  S.  481.  13  Sup.  Ct.  950,  37  L.  Ed.  819. 

"It  Is  settled  by  the  weight  of  authority  that,  where  a  principal 
sends  an  order  to  a  broker  engaged  in  an  established  market  of 
trade  for  a  deal  in  that  trade,  he  confers  authority  upon  the  broker 
to  deal  according  to  any  well-established  visage  in  such  market  or 
trade,  especially  when  such  usage  is*  known  to  the  principal,  and  is 
fair  in  itself,  and  does  not  change  in  any  essential  particular  the 
contract  between  the  principal  and  agent,  or  involves  no  departure 
from  the  instructions  of  the  principal,  provided  the  transaction 
*  *  *  is  legal  in  its  character."  Per  Jackson,  J. 

is  Capp  v.  Topham,  6  East,  392  (mistake  of  law);  Baily  v.  Bur- 
gess, 48  N.  J.  Eq.  411,  22  Atl.  733;  Haskin  v.  Haskin,  41  111.  197. 

Where  a  stockbroker  was  instructed  to  carry  over  stock  to  the  next 
settlement,  but  before  the  settling  day  became  insolvent  and  was 
declared  a  defaulter,  in  consequence  of  which  the  stock  was  sold 
at  a  loss,  the  principal  was  not  bound  to  indemnify  him,  the  loss 
having  'been  caused  by  the  broker's  insolvency.  Duncan  v.  Hill, 
Duncan  v.  Beeson,  L.  R.  8  Ex.  242.  Cf.  Hartas  v.  Ribbons,  22  Q.  B. 
D.  254. 


§  119)  ILLEGAL  TRANSACTIONS.  459 


ILLEGAL    TRANSACTIONS. 

119.  An  agent  is  not  entitled  to  remuneration,  reimburse- 
ment, or  indemnity  in  respect  to  any  transaction  which 
is  apparently,  or  to  his  knowledge,  illegaL 

An  agent,  as  a  rule,  cannot  recover  compensation  for  acts 
done  in  violation  of  law.  If  a  statute  or  ordinance  makes 
it  unlawful  for  a  particular  class  of  agents  to  transact  busi- 
ness without  a  license,  such  agent  so  transacting  business 
cannot  recover  commissions  for  his  services.1  If  the  object 
of  the  agency  is  the  performance  of  an  apparently  illegal  act, 
the  contract  of  employment  is  void,  and  there  can  be  no  re- 
covery.2 Some  examples  of  illegal  agencies  have  already 
been  given.*  And  since  ignorance  of  the  law  is  no  excuse, 
if  the  act  or  transaction  for  which  the  agent  is  employed 
is  prohibited  at  common  law,  or  by  statute  or  public  policy, 
there  can  be  no  recovery  notwithstanding  that  the  agent  is 
ignorant  of  the  law,  provided  he  has  sufficient  knowledge 

§  119.  i  Cope  v.  Rowlands,  2  M.  &  W.  149  (broker);  Polk  v.  Force, 
12  Q.  B.  666  (appraiser);  Brunswick  v.  Growl,  4  Ex.  492  (solicitor 
whose  certificate  is  not  In  force);  Buckley  v.  Humason,  50  Minn. 
195,  52  N.  W.  385,  16  L.  R.  A,  423,  36  Am.  St.  Rep.  637. 

In  Smith  v.  Lindo,  5  C.  B.  (N.  S.)  587,  it  was  held  that,  although 
an  unlicensed  broker  could  not  sue  for  commission,  he  might  re- 
cover money  which  he  had  been  obliged  to  pay. 

2  Illegal  sale  of  offices.  Stackpole  v.  Erie,  2  Wils.  133;  Parsons  v. 
Thompson,  14  Bl.  322;  Waldo  v.  Martin,  4  B.  &  C.  319. 

Procuring  government  contracts  by  corrupt  means.  Providence 
Tool  Co.  v.  Norris,  2  Wall.  (U.  S.)  45,  17  L.  Ed.  868;  Oscanyan  v 
Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539;  Elkhart  County  Lodge  v. 
Crary,  98  Ind.  238,  49  Am.  Rep.  746. 

On  appointment  to  office.  Meguire  v.  Corwine,  101  U.  S.  108,  25 
L.  Ed.  899;  Providence  Tool  Co.  v.  Norris,  2  Wall.  (U.  S.)  45,  17  L. 
Ed.  868;  Gray  v.  Hook,  4  N.  Y.  449. 

Lobbying.  Trist  v.  Child,  21  Wall.  (U.  S.)  441,  22  L.  Ed.  623;  Mc- 
Bratney  v.  Chandler,  22  Kan.  692,  31  Am.  Rep.  213. 

Combination  to  corner  market  Samuels  v.  Oliver,  130  111.  73,  22 
N.  E.  499. 

»  Ante,  p.  92. 


460  DUTIES  OP  PRINCIPAL  TO  AGENT.  (Ch.  10 

of  the  facts  to  be  charged  with  knowledge  that  the  act  or 
transaction  is  illegal.  Thus,  an  agent  who  is  employed  to 
sell  intoxicating  liquor  where  such  sale  is  illegal  cannot  re- 
cover remuneration  under  any  circumstances.4  On  the  oth- 
er hand,  an  agent  who  is  employed  in  a  transaction  which  is 
apparently  legal  may  recover  remuneration  notwithstanding 
that  by  reason  of  facts  of  which  he  is  ignorant  the  act  is 
illegal.  Thus,  an  agent  employed  to  sell  goods  who  is  ig- 
norant of  the  fact  that  they  belong  to  a  person  other  than 
his  principal  may  recover  compensation  notwithstanding  that 
his  sale  was  a  conversion.6  So,  a  broker  who  in  good  faith 
negotiates  a  contract  for  future  delivery  of  merchandise  will 
be  allowed  to  recover  his  commissions,  notwithstanding  the 
actual  intent  of  the  parties  to  speculate  in  margins  without 
actual  delivery,  and  the  consequent  illegality  of  the  trans- 
action as  a  gaming  or  wagering  contract,  provided  he  is  not 
privy  to  the  illegal  character  of  the  agreement ;  although  if 
he  is  privy  to  the  unlawful  design,  and  brings  the  parties 
together  for  the  purpose  of  entering  into  an  illegal  agree- 
ment, he  is  particeps  criminis,  and  cannot  recover.9 

The  same  distinctions  govern  the  right  of  the  agent  to 

«  Bixby  v.  Moor,  51  N.  H.  402.  »  Post,  p.  461. 

•  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225; 
Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L.  R.  A.  200,  15  Am.  St. 
Rep.  159:  Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  408;  Mohr  v. 
Miesen,  47  Minn.  228,  49  N.  W.  862. 

Gaming  and  wagering  contracts  are  in  the  United  States  generally 
held  to  be  illegal  as  against  public  policy.  Irwin  v.  Williar,  supra, 
and  cases  cited. 

In  England  such  contracts  were  held  not  t6  be  illegal.  By  8  &  9 
Viet.  c.  109,  they  were  rendered  null  and  void,  but  not  made  illegal, 
and  notwithstanding  the  act  money  paid  by  the  agent  in  pursuance 
of  such  a  contract  was  recoverable  from  the  principal.  Read  v. 
Anderson,  13  Q.  B.  D.  779;  Thacker  v.  Hardy,  4  Q.  B.  D.  685; 
Knight  v.  Lee  [1893]  1  Q.  B.  41. 

Since  the  Gaming  Act  1892  (55  Viet.  c.  9),  however,  no  compen- 
sation, reimbursement,  or  indemnity  is  recoverable  by  the  agent  in 
respect  to  such  a  contract.  Tatam  v.  Reeve  [189S]  1  Q.  B.  44.  See 
Bowstead,  Dig.  Ag.  arts.  65,  69. 


§  119)  ILLEGAL  TRANSACTIONS.  461 

recover  reimbursement  and  indemnity.  If  the  transaction  is 
apparently  or  to  his  knowledge  illegal,  he  cannot  recover; 
but  if  otherwise,  he  can.7  An  agent  employed  to  buy  smug- 
gled goods  cannot  recover  his  advances  made  in  the  pur- 
chase ;  •  nor  can  a  broker  who  effects  illegal  insurance  re- 
cover the  premiums  which  he  has  paid.9  An  agent  employed 
to  sell  goods  which  he  knows  to  belong  to  a  third  person  or 
to  commit  a  trespass  upon  land  cannot  recover  indemnity 
if  he  is  compelled  to  respond  in  damages  to  the  owner  of 
the  goods  or  of  the  land;  but  if  he  has  no  knowledge  of 
the  adverse  title,  and  sells  the  goods  or  enters  upon  the 
land  under  direction  of  his  principal,  who  claims  as  owner, 
and  a  recovery  is  subsequently  had  against  him  tor  damages 
for  the  conversion  or  trespass,  he  is  entitled  to  indemnity.10 
So,  if  a  broker  in  good  faith  negotiates  a  contract  for  future 
delivery  of  merchandise  under  the  circumstances  mentioned 
in  the  last  paragraph,  he  may  recover  reimbursement  for 
his  advances  or  indemnity  for  liability  which  he  has  incur- 
red in  execution  of  the  authority,  notwithstanding  that  by 
reason  of  the  illegal  intent  of  the  parties  to  which  he  was 

i  Bibb  v.  Allen.  149  U.  S.  498,  13  Sup.  Ct.  950,  37  L.  Ed.  819. 

•  Ex  parte  Mather,  3  Ves.  373. 

•  Allkins  v.  Jupe,  2  C.  P.  D.  375. 

10  Adamson  v.  Jarvis,  4  Blng.  66  (auctioneer  having  no  knowledge 
of  defect  of  title);  Drummond  v.  Humphreys,  39  Me.  347  (cutting  tim- 
ber on  land  not  owned  by  principal);  Coventry  v.  Barton,  17  Johns. 
(X.  Y.)  142,  8  Am.  Dec.  376;  Howe  v.  Railroad  Co.,  37  N.  Y.  297; 
Moore  v.  Appleton,  26  Ala.  633;  Nelson  v.  Cook,  17  111.  443. 

"Every  man  who  employs  another  to  do  an  act  which  the  employer 
appears  to  have  a  right  to  authorize  him  to  do  undertakes  to  indem- 
nify him  from  all  such  acts  as  would  be  lawful  If  the  employer  had 
the  authority  he  pretends  to  have."  Adamson  v.  Jarvis,  supra,  per 
Best,  C.  J. 

The  rule  that  one  wrongdoer  cannot  sue  another  for  contribution 
does  not  apply  to  cases  of  indemnity  where  one  employs  another 
to  do  acts  not  unlawful  In  themselves,  for  the  purpose  of  asserting 
a  right.  See  Adamson  v.  Jarvis,  supra;  Merry  weather  v.  Nixan,  8 
Term  R.  186;  Betts  v.  Gibbina,  2  Ad.  &  E.  57. 


462  DUTIES  OP  PRINCIPAL,  TO  AGENT.  (Ch.  16 

not  privy  the  transaction  is  illegal,  but  if  he  is  privy  there- 
to he  cannot  recover.11 


BIGHTS  OF  SUBAGENT. 

120.  Where  a  subagent  is  employed  on  behalf  of  the  prin- 
cipal, and  privity  of  contract  exists  between  them,  the 
snbagent  may  look  to  the  principal  for  remuneration, 
reimbursement,  and  indemnity;  bnt  otherwise  he  must 
look  to  his  immediate  employer. 

Where  a  subagent  is  employed  without  authority  of  the 
principal,  since  no  privity  of  contract  exists  between  them, 
the  subagent  must  look  solely  to  his  immediate  employer  for 
compensation,  reimbursement,  and  indemnity.1  Even  if  the 
employment  is  authorized,  the  right  of  the  subagent  to  look 
to  the  principal  will  depend  upon  whether  the  agent  was 
authorized  to  employ  the  subagent  upon  the  principal's  be- 
half and  to  create  privity  of  contract  between  them,  or  was 
merely  authorized  to  employ  a  subagent  upon  his  own  be- 
half and  responsibility.2  In  the  first  case  the  subagent  can 
look  to  the  principal,8  but  in  the  latter  he  can  look  only  to 
the  agent.4  The  same  principles  apply  where  the  authority 
of  an  agent  to  employ  a  subagent  is  derived  from  ratifi- 

11  Cases  cited  In  note  6,  supra. 

§  120.  i  Schmaling  v.  Tomlinson,  6  Taunt  147;  Sims  v.  Brittain, 
1  N.  &  M.  594;  Johnson  v.  Steamship  Co.,  5  Cal.  407;  Cleaves  v. 
Hoyt,  33  Me.  341;  Atlee  v.  Fink,  75  Mo.  100,  43  Am.  Rep.  385;  Hib- 
bard  v.  Peck,  75  Wis.  619,  44  N.  W.  641. 

a  Ante,  p.  123  et  seq. 

«  Keay  v.  Fen  wick,  1  C.  P.  D.  745;  Lincoln  v.  Battelle,  6  Wend. 
(N.  Y.)  475;  McConnell  v.  McCormick,  12  Cal.  142;  Cotton  States 
Life  Ins.  Co.  v.  Mallard,  57  Ga.  64. 

Unless  exclusive  credit  is  given  to  the  principal,  the  agent  also  is 
liable.  Story,  Ag.  §§  386,  387;  Wilkins  v.  Duncan,  2  Litt.  (Ky.)  168: 
Miles  v.  Mays,  15  Colo.  133,  25  Pac.  312;  Taylor  v.  Nostrand,  134  N. 
Y.  108,  31  N.  E.  246. 

<  Hill  v.  Morris,  15  Mo.  App.  322;  Corbett  v.  Schumacker,  83  111. 
403. 


§  121)  PERSONAL   REMEDIES   OF  AGENT.  463 

cation.8  If  the  employment  purported  to  be  of  the  sub- 
agent  as  agent  of  the  principal,  ratification  with  knowledge 
that  such  was  the  employment  would  create  privity  of  con- 
tract and  render  the  principal  liable  to  the  subagent ;  *  but, 
if  the  employment  was  upon  behalf  of  the  agent,  ratification 
would  have  no  such  effect.1 


PERSONAL   REMEDIES  OF  AGENT. 

121.  The  agent  may  maintain  an  action  at  law  against  his 
principal  for  the  recovery  of  his  remuneration,  reim- 
bursement, and  indemnity,  and,  if  the  accounts  are  so 
eomplicated  that  they  cannot  be  disposed  of  in  an 
action  at  lair,  may  have  an  account  taken  in  a  court 
of  equity. 

It  follows  from  what  has  been  said  that  the  agent  has 
a  right  to  recover  from  his  principal  whatever  may  be  due 
him  on  account  of  his  remuneration,  reimbursement,  or  in- 
demnity by  action  at  law ;  and  he  may  avail  himself  of  any 
such  claims  or  demands,  when  sued  for  the  funds  of  his 
principal  in  his  hands,  by  way  of  recoupment,  set-off,  or 
counterclaim.1  In  a  proper  case  he  may  have  an  account- 
ing in  a  court  of  equity ;  2  but  the  right  on  the  part  of 
the  agent  to  an  accounting  in  equity,  unlike  the  right  of 
the  principal  to  such  an  accounting,3  arises  only  when  the 
accounts  are  of  so  complicated  a  nature  that  they  cannot 
be  properly  and  conveniently  gone  into  by  a  jury.* 

«  Ante,  p.  125. 

«  Keay  v.  Fenwick,  1  C.  P.  D.  745;  Mason  v.  Clifton,  3  F.  &  F. 
899.  See,  also,  Dewing  v.  Button.  48  W.  Va.  576,  37  S.  E.  G70.  Cf. 
Grace  v.  Insurance  Co.,  10  Blatchf.  (U.  S.)  433,  Fed.  Cas.  No.  5,648. 

7  Hoinan  v.  Insurance  Co.,  7  Mo.  App.  22.  See,  also,  Hansback  v. 
Corrigan,  7  Kan.  App.  479,  54  Pac.  129. 

§  121.    i  Story,  Ag.  §  350. 

«  Padwick  v.  Hurst,  18  Beav.  575;  Harrington  v.  Churchward,  29 
L.  J.  Ch.  521. 

«  Ante,  p.  435. 

«  Padwick  v.  Stanley,  9  Haro,  627;    Smith  v.  Levoux,  1  H.  &  M. 


464  DUTIE3  OF  PRINCIPAL  TO  AGENT.  (Ch.  16 


LIEN   OF  AGENT— PARTICULAR  LIEN. 

122.  The    agent   lias    a   particular    lien    upon    the    goods    and 

chattels  of  the  principal  lawfully  in  his  possession  as 
agent  for  what  is  due  him  as  agent  in  respect  to  the 
property  subject  to  the  lien,  unless  the  existence  of 
•nch  lien  is  inconsistent  with  the  express  or  implied 
agreement  of  the  parties. 

SAME-GENERAL    LIEN. 

123.  In  addition  to  his  particular  lien,  an  agent  may  have  a 

general  lien  upon  the  goods  and  chattels  of  the  princi- 
pal lawfully  in  his  possession  as  agent  for  any  general 
balance  of  accounts  due  him  as  agent,  independently 
of  what  is  due  him  in  respect  to  the  property  subject 
to  the  lien.  A  general  lien,  unless  conferred  by  stat- 
ute, arises  only  by  express  or  implied  agreement,  ex- 
cept in  favor  of  factors,  insurance  brokers,  bankers, 
attorneys  at  law,  and  some  other  classes  of  agents  who 
by  usage  have  a  general  lien. 

SAME— LIEN   POSSESSORY. 

124.  The  lien  of  an  agent  is  possessory,  and   consists  In  the 

right  to  retain  possession  of  the  goods  and  chattels 
subject  thereto  until  satisfaction  of  the  debts  or  ob- 
ligations thereby  secured. 

Lien  of  Agent — Particular  or  General. 

In  addition  to  his  personal  remedies  for  the  recovery  of 
his  remuneration,  reimbursement,  and  indemnity  the  agent 
has  the  right  of  lien.  A  lien  at  common  law  may  be  de- 
nned as  the  right  to  retain  possession  of  a  thing  until  a  debt 
due  to  the  person  retaining  possession  is  satisfied.  A  lien 
may  be  particular  or  general.  Where  the  right  is  to  re- 
tain the  thing  which  is  the  subject  of  the  lien  for  charges 
or  demands  growing  out  of  or  connected  with  that  identical 
thing,  the  lien  is  particular.  Where  the  right  is  to  retain 
the  thing  not  only  for  charges  or  demands  growing  out  of 
or  connected  with  that  particular  thing,  but  for  a  general 


§§  122-124)  LIEN   OF  AGENT.  465 

balance  due  from  the  owner,  the  lien  is  general.  Unless 
there  is  an  express  or  implied  agreement  to  the  contrary, 
an  agent  has  a  particular  lien  upon  the  goods,  chattels, 
and  funds  of  his  principal  intrusted  to  him  in  the  course  of 
the  agency  or  rightfully  coming  into  his  possession  as  agent. 
The  lien  of  the  agent  is  merely  a  particular  lien,  unless  there 
is  an  express  agreement  for  a  general  lien,  or  unless  an 
agreement  for  a  general  lien  is  to  be  implied  from  a  pre- 
vious course  of  dealing  or  other  circumstances,1  or  unless 
he  belongs  to  a  class  of  agents  who  have  a  general  lien. 
Thus,  an  auctioneer  has  a  particular  lien  upon  the  goods 
intrusted  to  him  for  sale  and  upon  their  proceeds  for  his 
commissions  and  the  charges  of  sale,2  a  broker  employed  to 
procure  a  loan  has  a  particular  lien  for  his  commissions 
upon  the  proceeds  of  the  loan,3  but  neither  has  a  general 
lien.  On  the  other  hand,  factors,4  insurance  brokers,5  so- 
licitors and  attorneys,6  bankers,7  and  some  other  classes  of 
agents,8  have  a  general  lien.  The  general  lien  of  these  class- 
es of  agents  has  its  origin  in  the  general  usage  of  trade, 
which  has  become  so  fixed  that  the  courts  take  notice  of  it 
without  proof.  A  general  lien  is  sometimes  conferred  upon 

123,  33  L.  J.  Ch.  167;  Skilton  v.  Payne,  18  Misc.  Rep.  332,  42  N.  Y. 
Supp.  Ill;  Johnston  v.  Berlin,  35  Misc.  Rep.  146,  71  N.  Y.  Supp.  454. 

§§  122-124.  i  Bock  v.  Gorrisson,  30  L.  J.  Ch.  39;  McKenzie  v. 
Nevius,  22  Me.  138,  38  Am.  Dec.  291. 

2  Robinson  v.  Rutter,  4  El.  &  B.  954;  Wolfe  v.  Home,  2  Q.  B.  D. 
355. 

«  Vinton  v.  Baldwin,  95  Ind.  433. 

An  agent  who  obtains  possession  from  carrier  by  paying  freight  has 
lien  for  reimbursement  White  v.  Railway  Co.,  90  Ala.  254,  7  South. 
910. 

*  Post,  p.  46ft. 

B  Mann  v.  Forrester,  4  Cowp.  60;  Westwood  v.  Bell,  4  Camp.  349: 
Moody  v.  Webster,  3  Pick.  (Mass.)  424;  McKenzie  v.  Nevius,  22  Me. 
138,  38  Am.  Dec.  291. 

«  Post,  p.  467.  i  Post,  p.  466. 

s  Wharfingers.  Vaylor  v.  Mangles,  1  Ksp.  109;  Spears  Y.  Hartley, 
8  Esp.  81. 

Packers.    In  re  Witt,  2  Ch.  D.  489. 
TIFF.P.&  A.— 30 


466  DUTIES  OP  PRINCIPAL,  TO  AGENT.  (Ch.  1C 

certain  classes  of  agents  by  statute.9  A  consideration  of 
liens  peculiar  to  these  various  classes  of  agents  is  beyond 
the  scope  of  this  book,  but  a  few  words  may  be  said  as  to 
the  lien  of  factors,  bankers,  and  attorneys. 

A  factor  has  a  general  lien  upon  the  goods  of  his  prin- 
cipal in  his  possession  and  upon  the  proceeds  of  such  as 
are  lawfully  sold  by  him,  and  upon  the  securities  given  there- 
for for  the  general  balance  of  the  accounts  between  him  and 
his  principal,  as  well  as  for  his  charges,  advances,  and  ob- 
ligations made  or  incurred  upon  the  particular  goods.10  The 
lien  extends  to  all  sums  for  which  he  has  become  liable  as 
surety.11 

A  banker  has  a  general  lien  upon  all  notes,  bills,  checks, 
and  other  securities  deposited  with  him  by  his  customer  for 
the  balance  due  him  upon  general  account.12  Indeed,  the 
right  of  the  banker  in  respect  to  securities  indorsed  or  other- 
wise negotiated  and  deposited  with  him  is  greater  than  that 
of  a  mere  possessory  lien,  since  he  is,  in  effect,  a  holder  for 
value  to  the  extent  of  all  advances  and  acceptances,  present 
and  future,  made  by  him  for  his  customer  in  excess  of  the 
cash  balance  which  may  stand  to  his  credit ;  and  the  banker 
may  sue  and  recover  upon  the  securities,  at  least  to  the 
amount  of  the  balance  due  him.1* 


•  Story,  Ag.  §  375. 

»o  Story,  Ag.  §  376;  Krujrer  v.  Wilcox,  Ambler.  252;  Godin  v. 
London  Assurance  Co.,  1  W.  Bl.  103, 1  Burrows,  489;  Stevens  v.  Biller, 
25  Ch.  D.  31;  Jarvis  v.  Rogers,  15  Mass.  389,  396;  Knapp  v.  Alvord. 
10  Paige  (N.  Y.)  205,  40  Ana.  Dec.  241;  Bryce  v.  Brooks,  26  Wend.  (N 
Y.)  374;  Winter  v.  Coit,  7  N.  Y.  288,  57  Am.  Dec.  522;  Nagle  v.  Mc- 
Feeters,  97  N.  Y.  196;  Jordan  v.  James,  5  Ohio,  99;  McGraft  v. 
Rugee,  60  Wis.  406,  19  N.  W.  530,  50  Am.  Rep.  378;  Johnson  v.  Clark, 
20  Ind.  App.  247,  50  N.  E.  762. 

11  Drinkwater  v.  Goodwin,  Cowp.  251.    See  Hidden  v.  Waldo,  55 
N.  Y.  294. 

12  Story,  Ag.   §  380;    Miser  v.  Currie,  1  App.  Cas.  554;    London 
Chartered  Bank  v.  White,  4  App.  Cas.  413;   Brandao  v.  Barnett,  12 
C.  &  F.  787;    Swift  v.  Tyson,  16  Pet  (U.  S.)  1,  21,  10  L.  Ed.  805. 

13  Scott  v.  Franklin,  15  East,  428;  Percival  v.  Frempton,  2  C.,  M.  & 
R.  180. 


§§  122-124)  LIEN   OF  AGENT.  467 

An  attorney  at  law  or  solicitor  has  a  general  lien  upon  all 
documents  and  papers,  chattels  and  money,  belonging  to  his 
client,  of  which  he  obtains  possession  in  his  professional  ca- 
pacity.1* In  addition  to  his  general  or  retaining  lien,  an  at- 
torney has  a  so-called  "charging"  lien  upon  any  judgment 
obtained  by  him  for  his  client,  for  his  costs  and  disburse- 
ments incurred  in  the  particular  action,  which  by  the  aid  of 
the  court  he  may  actively  enforce.10  To  a  great  extent  the 
second  lien,  and  to  some  extent  the  first,  are  regulated  by 
statute.1* 

The  existence  of  a  general  lien,  however,  as  well  as  of 
a  particular  lien,  may  be  disproved  by  proof  of  an  ex- 
press or  implied  agreement  inconsistent  with  it.17  The  rules 
which  will  be  stated  in  the  succeeding  sections  are  applicable 
to  both  classes  of  liens. 

Same — Property  must  be  i/n  Lawful  Possession. 

The  lien,  being  possessory,  cannot  come  into  existence  un- 
less the  agent  obtains  possession.18  Thus,  where  a  factor 
bought  goods  on  behalf  of  his  principal,  but  it  was  agreed 
that  the  goods  should  remain  upon  the  premises  of  the  seller 
at  a  rent  to  be  paid  by  the  principal,  and  the  agent  upon 
request  of  the  seller,  but  without  authority  from  his  prin- 
cipal, removed  the  goods  to  his  own  premises,  the  possession 
continued  in  the  principal,  and  the  agent  was  not  entitled  to 
a  lien.1*  So,  where  a  factor  accepted  bills  upon  the  faith  of 
a  consignment,  and  both  he  and  the  principal  became  bank- 

i*  Re  Broomhead,  5  D.  &  L,.  52;  In  re  Paschal,  10  Wall.  (TT.  S.) 
483,  19  L.  Erl.  992;  McPherson  v.  Cox,  96  U.  S.  404,  24  L.  Ed.  746; 
In  re  Wilson  &  Greig  (D.  C.)  12  Fed.  235;  Bowling  Green  Say. 
Bank  v.  Todd,  52  N.  Y.  489;  In  re  Knapp,  85  N.  Y.  284;  Hurlbert 
V.  Brigham,  56  Vt  368. 

IB  Barker  v.  St.  Quentin,  12  M.  &  W.  451. 

»•  See  Jones,  Liens,  §  113  et  seq.,  §  153  et  seq. 

if  post,  p.  469. 

is  Kinloch  v.  Craig,  3  T.  R.  119,  783;  Taylor  v.  Robinson,  2  Mos. 
730;  Elliot  v.  Bradley,  23  Vt.  217;  Sawyer  v.  Lorillard,  48  Ala.  332. 

»•  Taylor  v.  Robinson,  2  Mos.  730. 


468  DUTIES  OP  PRINCIPAL  TO  AGENT.  (Ch.  16 

rupt  before  arrival  of  the  goods,  the  factor's  trustee  in  bank- 
ruptcy had  no  lien,  the  goods  having  never  been  in  the  fac- 
tor's possession.20  Constructive  possession,  however,  is  suf- 
ficient.21 The  lien  does  not  come  into  existence  unless  the 
thing  upon  which  it  is  sought  to  be  asserted  is  obtained 
by  the  agent  lawfully.  A  lien  cannot  be  acquired  by  a 
wrongful  or  unauthorized  act.  Thus,  an  agent  can  have  no 
lien  upon  goods  which  he  obtains  from  his  principal  by  mis- 
representations.22 So,  where  an  agent  who  was  employed 
by  a  ship's  husband  without  authority  made  the  freight  pay- 
able to  himself,  he  had  no  lien  upon  the  freight  received  by 
him  for  a  debt  due  from  his  principal.8' 

Same — Possession  must  be  Acquired  in  Same  Capacity. 

Possession  must  have  been  obtained  in  the  same  capacity 
in  which  the  agent  claims  the  lien.2*  The  lien  is  confined 
not  only  to  what  is  due  him  as  agent,  but  to  what  is  due 
him  as  agent  in  the  capacity  in  which  he  claims  the  lien. 
"A  man  is  not  entitled  to  a  lien  because  he  happens  to  fill 
a v  character  which  gives  him  such  a  right,  unless  he  has  re- 
ceived the  goods,  or  done  the  act,  in  the  particular  character 
to  which  the  right  attaches."  25  Thus,  the  lien  does  not  ex- 
tend to  a  debt  incurred  before  the  commencement  of  the 
agency.26  So  the  general  lien  of  a  factor  or  solicitor,  or 
banker,  does  not  extend  to  a  thing  of  which  he  obtains  pos- 
session as  agent  in  another  capacity.27  If  a  factor  insures 
a  ship  on  behalf  of  his  principal,  a  transaction  which  is  sepa- 

«o  Kinloch  v.  Craig,  3  T.  R.  119. 

21  Elliot  v.  Bradley,  23  Vt.  217;   Heard  v.  Brewer,  4  Daly  (N.  Y.) 
13G. 

22  Madden  v.  Kempster,  1  Camp.  12. 
as  Walshe  v.  Provan,  8  Ex.  843. 

2*  Houghton  v.  Matthews,  3  B.  &  P.  485;  Dixon  v.  Rtansfield,  10 
C.  B.  398. 

25  Per  Jervis,  O.  J.,  in  Dixon  v.  Stansfield,  10  C.  B.  398. 

28  Houghton  v.  Matthews,  3  B.  &  P.  485. 

27  Dixon  v.  Stansfield,  10  C.  B.  398;  Stevenson  v.  Blukelock,  1  M. 
&  S.  535;  In  re  Gallaud,  31  Ch.  D.  296. 


§§  122-124)  LIEN   OF  AGENT.  469 

rate  from  his  duties  as  factor,  his  general  lien  does  not  ex- 
tend to  the  policy  of  insurance,  because  he  does  not  obtain 
possession  in  his  capacity  as  factor.28  So,  securities  or  valu- 
ables left  with  a  banker  for  safe  custody  are  not  subject  to 
his  general  lien,  which  is  confined  to  what  is  deposited  with 
him  in  his  capacity  as  banker.29 

Same — No  Inconsistent  Agreement. 

Neither  does  the  lien  come  into  existence  if  there  is  any 
agreement,  express  or  implied,  clearly  inconsistent  with  its 
existence.80  Thus,  if  a  factor  agrees  to  deal  with  the  pro- 
ceeds of  goods  in  a  particular  way,  his  general  lien  is  ex- 
cluded.81 So,  where  an  insurance  policy  was  deposited  with 
bankers,  with  an  agreement  charging  it  with  overdrafts  not 
to  exceed  a  specified  amount,  the  bankers'  general  lien  was 
excluded.82  To  exclude  the  lien,  however,  it  must  appear 
that  the  agreement  is  clearly  inconsistent.88  The  lien  is  ex- 
cluded by  implication  if  the  property  is  delivered  to  the  agent 
with  express  directions,  or  for  a  special  purpose,  inconsist- 
ent with  its  existence.84  Thus,  if  an  agent  accepts  goods 

«  Dixon  v.  Stansfleld,  10  C.  B.  398. 

»•  No  lien  on  muniments  of  title  casually  left  at  bank  after  re- 
fusal to  loan  thereon.  Lucas  v.  Dorrien,  7  Taunt.  278. 

30  Cowell  v.  Simpson,  16  Ves.  275;  Bock  v.  Gorrison,  30  L.  J.  Ch. 
39;  Wylde  v.  Radford,  33  L.  J.  Ch.  51;  Oilman  v.  Brown,  1  Mason 
(U.  S.)  191,  Fed.  Gas.  No.  5,441. 

»i  Walker  v.  Birch,  6  T.  R.  258. 

« 2  In  re  Bowes,  33  Ch.  D.  586. 

»»  Brandao  v.  Barnett,  12  C.  &  F.  787,  3  C.  B.  519;  Jones  v.  Pepper- 
come,  28  L.  J.  Ch.  158;  Colmer  v.  Ede,  40  L.  J.  Ch.  185;  Fisher  v. 
Smith,  4  App.  Cas.  1  (agreement  for  monthly  settlement  does  not 
affect  lien  of  insurance  broker  for  premiums,  on  policies  in  his  hands); 
Stevens  v.  Billet,  25  Ch.  D.  31  (general  lien  of  factor  not  excluded  be- 
cause he  acts  under  special  instructions  to  sell  in  principal's  name 
and  at  fixed  price);  Haebler  v.  Luttgen,  61  Minn.  315,  63  N.  W.  720. 
See  Bowstead,  Dig.  Ag.  185. 

3*  Buchanan  v.  Findlay,  9  B.  &  C.  738;  Re  Cullen,  27  Beav.  51 
(money  received  by  solicitor  to  pay  off  mortgage). 

Where  goods  were  consigned  to  a  factor  for  sale,  with  a  state- 


470  DUTIES   OF  PRINCIPAL  TO  AGENT.  (Ch.  16 

with  directions  to  hold  them  or  to  apply  their  proceeds  sub- 
ject to  the  order  of,  or  to  deliver  them  to,  a  third  person, 
he  cannot  set  up  his  general  lien  in  opposition  to  the  direc- 
tions.35 So,  where  exchequer  bills  were  deposited  at  a  bank 
to  be  kept  in  a  box  under  lock  and  key,  and  were  after- 
wards intrusted  to  the  banker  with  instructions  to  obtain 
the  interest  on  them,  and  to  get  them  exchanged  for  new 
bills,  and  to  deposit  the  new  bills  in  the  boxes  as  before,  it 
was  held  that  the  banker's  lien  did  not  attach  upon  the 
old  or  the  new  bills,  the  special  purpose  for  which  they 
were  intrusted  to  him  being  inconsistent  with  a  general  lien.38 
As  in  the  case  of  the  lien  of  the  seller,  giving  credit  or  ac- 
cepting a  negotiable  instrument  in  conditional  payment 37 
is  a  waiver  of  the  lien,  which  revives,  however,  if  the  goods 
still  remain  in  the  agent's  possession  when  the  credit  expires 
or  the  paper  is  dishonored.88 

Same —  Ownership  of  Principal. 

In  order  that  the  agent  may  acquire  a  lien,  not  only  must 
the  possession  be  in  him,  but  the  ownership  must  be  in 
the  principal.  The  lien  can  attach  only  upon  a  thing  in  re- 
spect to  which,  as  against  third  persons,  the  principal  has 
a  right  to  create  a  lien.89  If,  when  the  thing  comes  into  the 

ment  that  the  goods  would  cover  a  bill  of  exchange  in  favor  of  a  third 
person,  and  with  a  request  to  honor  the  bill,  and  the  factor  refused 
to  accept  the  bill  on  presentment,  the  goods  were  appropriated  to 
meet  it,  and  the  third  person  had  a  lien  therefor  in  priority  to  the 
factor's  general  lien.  Frith  v.  Forbes,  4  De  Gex,  F.  &  J.  409. 

as  Walker  v.  Birch,  6  T.  R.  258;  Weymouth  v.  Boyer,  1  Ves.  Jr. 
416;  Jarvis  v.  Rogers,  15  Mass.  389,  395. 

«6  Brandao  v.  Barnett,  12  C.  &  F.  787,  3  O.  B.  519. 

87  Cowell  v.  Simpson,  16  Ves.  275;  Rait  v.  Mitchell,  14  Camp.  146; 
Hewison  v.  Guthrie,  2  Bing.  (N.  S.)  755;  Chandler  v.  Belden,  18 
Johns.  (N.  Y.)  157,  9  Am.  Dec.  193;  Hutchins  v.  Olcutt,  4  Vt.  549,  24 
Am.  Dec.  634;  Au  Sable  River  Boom  Co.  v.  Sanborn,  36  Mich.  358; 
Jones,  Liens,  §  1003. 

ss  Stevenson  v.  Blakelock,  1  M.  &  S.  535. 

s»  Bryce  v.  Brooks,  26  Wend.  (N.  Y.)  374. 

No  lien  can  attach  on  the  books  of  a  company,  because  the  direct- 


§§  122-124)  LIEN  OF  AGENT.  471 

agent's  possession,  the  ownership  of  the  principal  has  been 
divested,  no  lien  can  arise.40  On  the  other  hand,  if  the  lien 
has  once  attached,  it  cannot  be  affected  by  any  subsequent 
act  of  the  principal  or  by  his  bankruptcy.41  The  rule  that  the 
thing  upon  which  the  lien  attaches  must  be  owned  by  the 
principal  does  not  apply  to  money  and  negotiable  instru- 
ments, the  usual  privileges  attaching  to  negotiable  paper  in 
favor  of  bona  fide  purchasers  for  value  without  notice  pro- 
tecting the  agent  to  the  extent  of  his  lien.41 

Same — for   What  Obligations  Lien  Attaches. 

The  lien  attaches  only  to  certain  and  liquidated  demands, 
and  not  to  those  which  sound  only  in  damages  and  can  be 
ascertained  only  through  the  intervention  of  a  jury.  Hence 
the  lien  does  not  extend  to  a  demand  for  an  indemnity 
against  future  contingent  claims  or  damages.48  Such  a  lien 
can  be  created  only  by  special  contract.  But  the  obligation 
need  not  be  due.  Thus  a  factor,  or  other  agent,  who  has 
accepted  bills  on  the  faith  of  a  consignment  or  of  goods  in 
his  possession  has  a  lien  for  the  amount  of  bills  not  yet  due 
as  well  as  of  those  which  he  has  paid.44 

ore  have  no  power  to  create  a  lien  that  could  interfere  with  th*Ir 
use.  Re  Capital  Fire  Ins.  Ass'n,  Ex  parte  Beall,  24  Ch.  D.  408; 
Re  Anglo-Maltese  H.  D.  Co.,  54  L.  J.  Ch.  730. 

«o  Copeland  v.  Stein,  8  T.  R.  199  (goods  consigned  to  factor  after 
bankruptcy  of  principal). 

41  Robson  v.  Kemp,  4  Esp.  233;  Godwin  v.  Assurance  Co.,  1  W.  Bl. 
103. 

42  Brandao  v.  Barnett,  12  C.  &  P.  787,  3  C.  B.  519;   Bosanquet  v. 
Dudman,  1  Stark.  1;  Jones  v.  Peppercorne,  28  L.  J.  Ch.  158;   Misa  v. 
Currie,  1  App.  Cas.  554;  Swift  T.  Tyson,  16  Pet  (U.  S.)  1,  21,  10  L. 
Ed.  865. 

43  Story,  Ag.  §  364. 

44  Hammond  v.  Barclay,  2  East,  227;  In  re  Pavy's  Pat  F.  P.  Go., 
1  Ch.  D.  631;  ante,  p.  466. 


472  DUTIES  OF  PRINCIPAL  TO  AGENT.  (Ch.  1£ 

Same — Termination  of  Lien. 

The  lien  is  terminated  if  the  agent  voluntarily  gives  up 
possession,48  unless  he  is  induced  to  do  so  by  fraud  4<J  or 
mistake,  or  possession  is  obtained  from  him  illegally.41  But, 
although  the  agent  parts  with  possession  by  making  an  au- 
thorized sale  of  goods,  the  lien  attaches  to  the  proceeds  of 
sale.48  The  agent  abandons  his  lien  even  if  his  transfer  of 
possession  be  wrongful,  as  when  he  tortiously  sells  or 
pledges  goods  for  advances  made  to  himself,48  or  causes 
them  to  be  taken  on  execution  at  his  own  suit.50  On  the 
other  hand,  he  may  pledge  the  goods  as  security  to  the  ex- 
tent of  the  amount  due  him,  for  which  he  has  a  lien,  if  he 
notifies  the  pledgee  that  he  is  to  hold  only  for  the  lien,  the 
constructive  possession  in  that  case  continuing  in  the  agent, 
and  the  pledgee  having,  in  effect,  a  mere  custody.81 

Again,  the  agent  may  expressly  waive  his  lien,  or  may 
waive  it  by  entering  into  an  agreement  which  is  inconsistent 
with  its  continuance.82  Taking  other  security  for  the  debt 
or  obligation  is  an  abandonment,88  provided  the  nature  of 
the  security  and  the  circumstances  under  which  it  is  taken 
are  inconsistent  with  its  continuance  or  indicate  an  intention 

48  Sweet  v.  Pym,  1  East,  4  (delivery  to  carrier  for  principal);  Levy 
v.  Barnard,  2  Moore,  34;  Rosenbaum  v.  Hayes,  8  N.  D.  461,  79  N. 
W.  987. 

4«  Wallace  v.  Woodgate,  \  C.  &  P.  575,  R,  &  M.  193;  Bigelow  v. 
Heaton,  6  Hill  (N.  Y.)  43. 

47  Dices  v.  Stockley,  7  C.  &  P.  587. 

48  Ante,  p.  468. 

49  McComble  v.  Da  vies,  4  East,  7;  Jarvls  v.  Rogers,  15  Mass.  389, 
396;   Walker  Co.  v.  Produce  Co.,  106  Iowa,  245,  76  N.  W.  673;   Id., 
113  Iowa,  428,  85  N.  W.  614,  53  L.  R.  A.  775  (sale  amounting  to  con- 
version). 

so  Jacobs  v.  La  tour,  5  Bing.  130. 

si  Man  v.  Shiffner,  2  East,  529;  McComble  v.  Da  vies,  7  East,  7; 
Jarvis  v.  Rogers,  15  Mass.  389,  408;  Urquhart  v.  Mclver,  4  Johns. 
(N.  Y.)  103;  Nash  v.  Mosher,  19  Wend.  (N.  Y.)  431. 

62  Peisch  v.   Dickson,  1  Mason   (TJ.  S.)  9,  Fed.   Gas.  No.  10,911  • 
Sawyer  v.  Lorillard,  48  Ala.  332;  The  Rainbow,  5  Asp.  M.  C.  479. 

63  Cowell  v.  Simpson,  16  Ves.  275, 


§§  122-124)  LIEN   OF  AGENT.  473 

to  abandon  it.14  The  lien  is  also  lost  by  entering  into  a  rela- 
tion or  acting  in  a  capacity  which  is  inconsistent  with  its  con- 
tinuance.68 

The  lien  does  not  terminate  upon  the  death  of  the  prin- 
cipal,56 nor  does  it  cease  because  the  debt  or  obligation  is 
barred  by  the  statute  of  limitations.67 

The  Hen  is  lost  by  a  wrongful  refusal  to  deliver,  as  where 
the  agent  refuses  to  deliver  under  claim  of  right  not  based 
upon  his  lien.6* 

Sow  Enforced. 

The  lien  ordinarily  amounts  to  no  more  than  a  right  of 
retainer.  The  agent  may  assert  the  right  as  a  defense  if 
his  possession  is  attacked,  and  may  reclaim  the  thing  if  he 
is  unlawfully  dispossessed,  but  he  cannot  sell  or  dispose  of 
the  thing  to  satisfy  his  claim.69  An  exception  exists  in  fa- 
vor of  a  factor  who  has  made  advances  upon  goods  con- 
signed to  him,  a  right  to  sell  if  upon  notice  his  principal  does 
not  repay  him  being  conferred.80  In  some  cases  a  court  of 
equity  will  decree  a  sale.81 

"4  Angus  v.  Machlachan,  23  Cb.  D.  330;  Re  Taylor  [1891]  1  Ch.  590. 
See  Jones,  Liens,  §  1011. 

es  Re  Nicholson,  Ex  parte  Quinn,  53  L.  J.  Ch.  302  (solicitor  acting 
for  mortgagor  and  mortgagee  loses  lien  on  title  deeds). 

so  Hammond  v.  Barclay,  2  East,  227;  Newhall  v.  Dunlap,  14  Me. 
180,  31  Am.  Dec.  45. 

ST  Spears  v.  Hartley,  3  Eep.  81;  Re  Broomhead,  16  L.  J.  Q.  B.  355. 

BS  Jones,  Liens,  §  1018  et  seq. 

«»  Story,  Ag.  §  371.  But  see  Dewing  v.  Hutton,  40  W.  Va.  521,  21 
8.  E.  780. 

«o  Ante,  p.  403.  Walker  Co.  v.  Produce  Co.,  113  Iowa,  428,  85  N. 
W.  614.  53  L.  R.  A.  775. 

•i  Story,  Ag.  |  371;  Whitman  v.  Horton,  46  N.  Y.  Super.  Ct  531; 
Id.,  94  N.  Y.  644  (factor). 


474  DUTIES  OP  PRINCIPAL,  TO  AGENT.  (Ch.  16 


XJEN   OF   SUBAGENT. 

125.  Where  a  subagent  is  appointed  by  authority  of  the  prin- 
cipal, if  he  has  notice  that  his  immediate  employer  is 
not  acting  on  his  own  behalf,  he  has,  as  against  the 
principal,  a  particular  lien,  but  his  general  lien  is 
limited  to  the  amount  due  from  the  principal  to  the 
agent;  if  he  has  not  such  notice,  he  has,  as  against 
the  principal,  the  same  right  of  lien  that  he  would 
have  against  the  agent  were  the  agent  acting  on  his 
own  behalf. 

Where  a  subagent  is  employed  without  the  express  or  im- 
plied authority  of  the  principal,  the  subagent  must  look  to 
his  immediate  employer  for  remuneration,  reimbursement, 
and  indemnity,1  and  has  no  lien,  general  or  particular, 
against  the  principal.  Thus,  if  a  factor,  without  the  assent 
of  his  principal,  delegates  his  authority  to  another,  the  latter 
has  no  lien,  even  for  duties  paid  upon  the  goods.2  If,  how- 
ever, the  employment  of  the  subagent  is  authorized,  he  will 
be  entitled  to  a  lien,  the  nature  and  extent  of  which  depends 
upon  whether  at  the  time  of  his  appointment  he  knows  or 
has  reason  to  know  that  the  agent  employing  him  is  not 
acting  on  his  own  behalf.8  If  the  subagent  has  notice  that 
his  immediate  employer  is  not  so  acting,  he  has,  neverthe- 
less, as  against  the  principal,  a  particular  lien ;  *  but  he  has, 
strictly  speaking,  no  general  lien.5  He  may,  however,  if  the 
agent  has  a  lien,  general  or  particular,  avail  himself  of  that 
lien  by  way  of  substitution.  In  other  words,  his  general  lien, 
as  against  the  principal,  is  limited  to  the  amount  due  from 

§  125.    i  Ante,  p.  462. 

«  Solly  v.  Rathbone,  2  M.  &  S.  298. 

»  See  Bowstead,  Dig.  Ag.  art.  173;  Story,  Ag.  §§  389,  390. 

*  Fisher  v.  Smith,  4  App.  Gas.  1;  Lawrence  v.  Fletcher,  12  Ch.  D. 
858;  Lincoln  v.  Battelle,  6  Wend.  (N.  Y.)  475;  McKenzie  v.  Nevius, 
22  Me.  138,  38  Am.  Dec.  291. 

s  Maanss  v.  Henderson,  1  East,  335;  Snook  v.  Davidson,  2  Camp. 
218;  Lanyon  v.  Blanchard,  2  Camp.  597;  Foster  v.  Hoyt,  2  Johns. 
Cas.  (N.  Y.)  327. 


§  126)  BIGHT   OF   STOPPAGE   IN   TRANSITU.  475 

the  principal  to  the  agent.8  Thus,  if  an  agent  employs  an 
insurance  broker  to  effect  a  policy,  although  the  broker  is 
aware  that  the  agent  is  acting  for  a  principal,  he  has  a  par- 
ticular lien  for  premiums  paid  by  him  or  for  which  he  is 
liable,  and  this  notwithstanding  that  the  principal  settles  with 
the  agent ; T  but,  in  the  absence  of  a  lien  in  favor  of  the  agent 
to  which  he  may  be  substituted,  he  has  no  lien  as  against 
the  principal  for  a  general  balance  due  from  the  agent  in 
other  transactions.8  On  the  other  hand,  if  the  subagent  has 
not  notice  that  his  immediate  employer  is  not  acting  on  his 
own  behalf,  he  has  the  same  right  of  lien,  general  or  particu- 
lar, as  against  the  principal,  that  he  would  have  had  against 
the  agent  had  the  agent  been  acting  on  his  own  behalf.9 
Thus,  in  the  illustration  above  given,  if  the  insurance  broker 
were  not  aware  that  he  was  dealing  with  an  agent,  he  would 
have,  upon  the  policy,  not  only  a  particular  lien,  but  a  lien 
for  any  general  balance  due  him  as  broker  from  the  agent. 
Having  reason  to  believe  that  his  employer  was  the  prin- 
cipal, he  is  entitled  to  hold  the  policy.10 

BIGHT  OF  STOPPAGE  IN  TRANSITU. 

126.  Where  an  agent  has  bought  goods  for  his  principal  with 
his  own  money  or  credit,  he  has,  as  against  his  prin- 
cipal, the  same  right  of  stoppage  in  transitn  that  he 
would  have  if  he  were  an  nnpaid  seller. 

On  account  of  its  intrinsic  justice,  the  courts  are  inclined 
to  look  with  favor  upon  the  right  of  stoppage  in  transitu,  and 
to  extend  it  to  any  one  whose  position  is  substantially  that 
of  an  unpaid  seller.  Hence  the  right  may  be  exercised  by  a 
consignor,  factor,  or  other  agent  who  has  bought  goods  for 

•  Man  v.  Shlffner,  2  East,  523;   Ex  parte  Edwards,  Re  Johnson,  8 
Q.  B.  D.  262. 

i  Fisher  v.  Smith,  4  App.  Cas.  1.  •  Cases  cited  note  5. 

•  Maun  v.  Forrester,  4  Camp.  60;  Westwood  v.  Bell,  4  Camp.  349; 
Montagu  v.  Forwood  [1893]  2  Q.  B.  26<X 

10  Westwood  v.  Bell,  4  Camp.  349. 


476  DUTIES  OP  PRINCIPAL  TO  AGENT.  (Ch.  16 

his  principal  with  his  own  money  or  credit,  if  the  other 
conditions  exist  which  would  entitle  an  unpaid  seller  to  exer- 
cise the  right.1  Where  the  agent  is  thus  in  the  position  of 
unpaid  seller,  he  has  ordinarily,  indeed,  before  delivering  the 
goods  to  the  carrier  for  transmission  to  the  principal,  more 
than  a  mere  agent's  lien,  or  even  seller's  lien,  retaining  not 
merely  possession  of  the  goods,  but  the  property  in  them.2 
In  such  case  it  would  seem  that,  although  shipment  of  the 
goods  (if  without  reservation  of  the  right  of  disposal)  would 
be  an  appropriation  to  the  contract,  he  would,  upon  re- 
gaining possession  by  exercise  of  the  right  of  stoppage,  be 
entitled  to  hold  them  subject  to  a  seller's  lien  *  with  a  right 
of  resale.  On  the  other  hand,  if  upon  shipment  he  re- 
served the  right  of  disposal,  by  taking  a  bill  of  lading  to  his 
own  order  or  otherwise,  so  that  the  appropriation  was  only 
conditional,  he  would,  upon  recovering  the  actual  posses- 
sion of  the  goods  upon  nonfulfillment  of  the  condition  to 
which  the  appropriation  was  subject,  be  restored  to  his  rights 
of  ownership.4  It  may  be  observed  that  a  principal  con- 
signing goods  to  his  factor  has  the  right  of  stoppage  in  tran- 
situ,  although  the  factor  may  have  made  advances  or  has  a 
joint  interest  with  the  consignor.* 

§  126.  i  Feise  v.  Wray,  3  East,  93;  Tucker  v.  Humphrey,  4  Bing. 
516;  The  Tigress,  B.  &  L.  38,  9  Jur.  (N.  S.)  361;  Imperial  Bank  v. 
London  &  St  Katherine's  Docks,  5  Ch.  D.  195;  Hawks  v.  Dunn,  1 
Tyr.  413,  1  C.  &  J.  519;  Falk  v.  Fletcher,  18  C.  B.  (N.  S.)  403;  New- 
hall  v.  Vargas,  13  Me.  93,  29  Am.  Dec.  489;  Seymour  v.  Newton,  105 
Mass.  272,  275;  Muller  v.  Pondir,  55  N.  Y.  325,  14  Am.  Rep.  2591 
Gossler  v.  Schepeler,  5  Daly  (N.  Y.)  476.  See,  also,  Hollins  v.  Hub- 
bard,  165  N.  Y.  534,  59  N.  E.  317. 

Otherwise  where  an  agent  having  a  lien  for  advances  ships  at  his 
principal's  request  to  a  buyer.  Gwyn  v.  Railroad  Co.,  85  N.  C.  429, 
39  Am.  Rep.  708.  See  Tiflfany,  Sales,  215. 

2  Shepherd  v.  Harrison,  L.  R.  4  Q.  B.  196,  493,  5  H.  L.  116;  Farm- 
ers' &  Mechanics'  Nat  Bank  v.  Logan,  74  N.  Y.  568;  Moors  v.  Kidder, 
106  N.  Y.  32,  12  N.  E.  818. 

»  Tiffany,  Sales,  226.  «  Tiffany,  Sales,  104. 

«  Klnloch  v.  Craig,  3  T.  R.  119;  Newsom  v.  Thornton,  6  East,  17. 


APPENDIX. 


NEW  YORK   FACTORS'   ACT. 

LAWS    183O,   c.   179. 

An  Act  for  the  Amendment  of  the  Law  relative  to  Prin- 
cipals and  Factors  or  Agents.     [Passed  April  16,  1830.] 

§  I.  After  this  act  shall  take  effect,  every  person  in  whose 
name  any  merchandize  shall  be  shipped,  shall  be  deemed  the 
true  owner  thereof,  so  far  as  to  entitle  the  consignee  of  such 
merchandize  to  a  lien  thereon. 

1.  For  any  money  advanced,  or  negotiable  security  giv- 
en, by  such  consignee,  to  or  for  the  use  of  the  person  in 
whose  name  such  shipment  shall  have  been  made ;  and, 

2.  For  any  money  or  negotiable  security  received  by  the 
person  in  whose  name  such  shipment  shall  have  been  made, 
to  or  for  the  use  of  such  consignee. 

§  2.  The  lien  provided  for  in  the  preceding  section,  shall 
not  exist  where  such  consignee  shall  have  notice,  by  the  bill 
of  lading  or  otherwise,  at  or  before  the  advancing  of  any 
money  or  security  by  him,  or  at  or  before  the  receiving  of 
such  money  or  security  by  the  person  in  whose  name  the 
shipment  shall  have  been  made,  that  such  person  is  not  the 
actual  and  bona  fide  owner  thereof. 

§  3.  Every  factor  or  other  agent,  entrusted  with  the  pos- 
session of  any  bill  of  lading,  custom-house  permit,  or  ware- 
house keeper's  receipt  for  the  delivery  of  any  such  mer- 
chandize, and  every  such  factor  or  agent  not  having  the 
documentary  evidence  of  title,  who  shall  be  entrusted  with 
the  possession  of  any  merchandize  for  the  purpose  of  sale,  or 

(477) 


478  APPENDIX. 

as  a  security  for  any  advances  to  be  made  or  obtained  there- 
on, shall  be  deemed  to  be  the  true  owner  thereof,  so  far  as 
to  give  validity  to  any  contract  made  by  such  agent  with 
any  other  person,  for  the  sale  or  disposition  of  the  whole 
or  any  part  of  such  merchandize,  for  any  money  advanced,  or 
negotiable  instrument  or  other  obligation  in  writing  given  by 
such  other  person  upon  the  faith  thereof. 

§  4.  Every  person  who  shall  hereafter  accept  or  take  any 
such  merchandize  in  deposit  from  any  such  agent,  as  a  se- 
curity for  any  antecedent  debt  or  demand,  shall  not  acquire 
thereby,  or  enforce  any  right  or  interest  in  or  to  such  mer- 
chandize or  document,  other  than  was  possessed  or  might 
have  been  enforced  by  such  agent  at  the  time  of  such  de- 
posit. 

§  5.  Nothing  contained  in  the  two  last  preceding  sections 
of  this  act,  shall  be  construed  to  prevent  the  true  owner  of 
any  merchandize  so  deposited,  from  demanding  or  receiving 
the  same,  upon  repayment  of  the  money  advanced,  or  on 
restoration  of  the  security  given,  on  the  deposit  of  such  mer- 
chandize, and  upon  satisfying  such  lien  as  may  exist  thereon 
in  favor  of  the  agent  who  may  have  deposited  the  same ;  nor 
from  recovering  any  balance  which  may  remain  in  the  hands 
of  the  person  with  whom  such  merchandize  shall  have  been 
deposited,  as  the  produce  of  the  sale  thereof,  after  satisfy- 
ing the  amount  justly  due  to  such  person  by  reason  of  such 
deposit. 

§  6.  Nothing  contained  in  this  act  shall  authorize  a- 
common  carrier,  warehouse-keeper,  or  other  person  to  whom 
merchandize  or  other  property  may  be  committed  for  trans- 
portation or  storage  only,  to  sell  or  hypothecate  the  same. 

[§  7.  Repealed  by  Laws  1886,  c.  593.] 

•  §  8.  Nothing  contained  in  the  last  preceding  section,  shall 
be  construed  to  prevent  the  court  of  chancery  from  com- 
pelling discovery,  or  granting  relief  upon  any  bill  to  be  filed 
in  that  court  by  the  owner  of  any  merchandize  so  entrusted 
or  consigned,  against  the  factor  or  agent  by  whom  such  mer- 
chandize shall  have  been  applied  or  sold  contrary  to  the 


APPENDIX.  479 

provisions  of  the  said  section,  or  against  any  person  who 
shall  have  been  knowingly  a  party  to  such  fraudulent  appli- 
cation or  sale  thereof;  but  no  answer  to  any  such  bill  shall 
be  read  in  evidence  agains.t  the  defendant  making  the  same, 
on  the  trial  of  any  indictment  for  the  fraud  charged  in  the 
bill. 


ENGLISH    FACTORS'   ACT,  1889. 

52   &   53   VICT.   e.   45. 


An  Act  to  Amend  and  Consolidate  the  Factors'  Acts.    [26th 
August,  1889.] 

Be  it  enacted    *    *    *    as  follows : 

Preliminary. 

I.  For  the  purposes  of  this  act — 

(1)  The  expression  "mercantile  agent"  shall  mean  a  mer- 
cantile agent  having  in  the  customary  course  of  his  business 
as  such  agent  authority  either  to  sell  goods,  or  to  consign 
goods  for  the  purpose  of  sale,  or  to  buy  goods,  or  to  raise 
money  on  the  security  of  goods : 

(2)  A  person  shall  be  deemed  to  be  in  possession  of  goods 
or  of  the  documents  of  title  to  goods,  where  the  goods  or 
documents  are  in  his  actual  custody  or  are  held  by  any  other 
person  subject  to  his  control  or  for  him  or  on  his  behalf: 

(3)  The  expression  "goods"  shall  include  wares  and  mer- 
chandise: 

(4)  The  expression  "document  of  title"  shall  include  any 
bill  of  lading,  dock  warrant,  warehouse-keeper's  certificate, 
and  warrant  or  order  for  the  delivery  of  goods,  and  any  other 
document  used  in  the  ordinary  course  of  business  as  proof  of 
the  possession  or  control  of  goods,  or  authorizing  or  pur- 
porting to  authorize,  either  by  endorsement  or  by  delivery, 


480  APPENDIX. 

the  possessor  of  the  document  to  transfer  or  receive  goods 
thereby  represented : 

(5)  The  expression  "pledge"   shall  include  any  contract 
pledging,  or  giving  a  lien  or  security  on,  goods,  whether  in 
consideration  of  an  original  advance  or  of  any  further  or  con- 
tinuing advance  or  of  any  pecuniary  liability : 

(6)  The  expression  "person"  shall  include  any  body  of  per- 
sons corporate  or  unincorporate. 

Dispositions  by  Mercantile  Agents. 

2. — (i)  Where  a  mercantile  agent  is,  with  the  consent  of 
the  owner,  in  possession  of  goods  or  of  the  documents  of 
title  to  goods,  any  sale,  pledge,  or  other  disposition  of  the 
goods,  made  by  him  when  acting  in  the  ordinary  course  of 
business  of  a  mercantile  agent,  shall,  subject  to  the  provi- 
sions of  this  act,  be  as  valid  as  if  he  were  expressly  au- 
thorized by  the  owner  of  the  goods  to  make  the  same ;  pro- 
vided that  the  person  taking  under  the  disposition  acts  in 
good  faith,  and  has  not  at  the  time  of  the  disposition  notice 
that  the  person  making  the  disposition  has  not  authority  to 
make  the  same. 

(2)  Where  a  mercantile  agent  has,  with  the  consent  of  the 
owner,  been  in  possession  of  goods  or  of  the  documents  of 
title  to  goods,  any  sale,  pledge,  or  other  disposition,  which 
would  have  been  valid  if  the  consent  had  continued,  shall  be 
valid  notwithstanding  the  determination  of  the  consent :    pro- 
vided that  the  person  taking  under  the  disposition  has  not  at 
the  time  thereof  notice  that  the  consent  has  been  deter- 
mined. 

(3)  Where  a  mercantile  agent  has  obtained  possession  of 
any  documents  of  title  to  goods  by  reason  of  his  being  or 
having  been,  with  the  consent  of  the  owner,  in  possession  of 
the  goods  represented  thereby,  or  of  any  other  documents  of 
title  to  the  goods,  his  possession  of  the  first-mentioned  doc- 
uments shall,  for  the  purposes  of  this  act,  be  deemed  to  be 
with  the  consent  of  the  owner. 

(4)  For  the  purposes  of  this  act  the  consent  of  the  own- 


APPENDIX.  481 

er  shall  be  presumed  in  the  absence  of  evidence  to  the  con- 
trary. 

3.  A  pledge  of  the  Documents  of  title  to  goods  shall  be 
deemed  to  be  a  pledge  of  the  goods. 

4.  Where  a  mercantile  agent  pledges  goods  as  security  for 
a  debt  or  liability  due  from  the  pledger  to  the  pledgee  before 
the  time  of  the  pledge,  the  pledgee  shall  acquire  no  further 
right  to  the  goods  than  could  have  been  enforced  by  the 
pledger  at  the  time  of  the  pledge. 

5.  The  consideration  necessary  for  the  validity  of  a  sale, 
pledge,  or  other  disposition,  of  goods,  in  pursuance  of  this 
act,  may  be  either  a  payment  in  cash,  or  the  delivery  or  trans- 
fer of  other  goods,  or  of  a  document  of  title  to  goods,  or  of 
a  negotiable  security,  or  any  other  valuable  consideration; 
but  where  goods  are  pledged  by  a  mercantile  agent  in  con- 
sideration of  the  delivery  or  transfer  of  other  goods,  or  of  a 
document  of  title  to  goods,  or  of  a  negotiable  security,  the 
pledgee  shall  acquire  no  right  or  interest  in  the  goods  so 
pledged  in  excess  of  the  value  of  the  goods,  documents,  or 
security  when  so  delivered  or  transferred  in  exchange. 

6.  For  the  purposes  of  this  act  an  agreement  made  with  a 
mercantile  agent  through  a  clerk  or  other  person  authorized 
in  the  ordinary  course  of  business  to  make  contracts  of  sale 
or  pledge  on  his  behalf  shall  be  deemed  to  be  an  agreement 
with  the  agent. 

7. — (i)  Where  the  owner  of  goods  has  given  possession  of 
the  goods  to  another  person  for  the  purpose  of  consignment 
or  sale,  or  has  shipped  the  goods  in  the  name  of  another  per- 
son, and  the  consignee  of  the  goods  has  not  had  notice  that 
such  person  is  not  the  owner  of  the  goods,  the  consignee 
shall,  in  respect  of  advances  made  to  or  for  the  use  of  such 
person,  have  the  same  lien  on  the  goods  as  if  such  per- 
son were  the  owner  of  the  goods,  and  may  transfer  any 
such  lien  to  another  person. 

(2)  Nothing  in  this  section  shall  limit  or  affect  the  validity 
of  any  sale,  pledge,  or  disposition,  by  a  mercantile  agent. 
TIFF  P.&  A.— 31 


482  APPENDIX. 

Dispositions   by    Sellers   and    Buyers    of    Good*. 

8.  Where  a  person,  having  sold  goods,  continues,  or  is, 
in  possession  of  the  goods  or  of  the  documents  of  title  to  the 
goods,  the  delivery  or  transfer  by  that  person,  or  by  a  mer- 
cantile agent  acting  for  him,  of  the  goods  or  documents  of 
title  under  any  sale,  pledge,  or  other  disposition  thereof,  or 
under  any  agreement  for  sale,  pledge,  or  other  disposition 
thereof,  to  any  person  receiving  the  same  in  good  faith  and 
without  notice  of  the  previous  sale,  shall  have  the  same 
effect  as  if  the  person  making  the  delivery  or  transfer  were 
expressly  authorized  by  the  owner  of  the  goods  to  make  the 
same. 

9.  Where  a  person,  having  bought  or  agreed  to  buy  goods, 
obtains  with  the  consent  of  the  seller  possession  of  the  goods 
or  the  documents  of  title  to  the  goods,  the  delivery  or  trans- 
fer, by  that  person  or  by  a  mercantile  agent  acting  for  him, 
of  the  goods  or  documents  of  title,  under  any  sale,  pledge,  or 
other  disposition  thereof,  or  under  any  agreement  for  sale, 
pledge,  or  other  disposition  thereof,  to  any  person  receiving 
the  same  in  good  faith  and  without  notice  of  any  lien  or  oth- 
er right  of  the  original  seller  in  respect  of  the  goods,  shall 
have  the  same  effect  as  if  the  person  making  the  delivery  or 
transfer  .were  a  mercantile  agent  in  possession  of  the  goods 
or  documents  of  title  with  the  consent  of  the  owner. 

10.  Where  a  document  of  title  to  goods  Jias  been  lawfully 
transferred  to  a  person  as  a  buyer  or  owner  of  the  goods, 
and  that  person  transfers  the  document  to  a  person  who  takes 
the  document  in  good  faith  and  for  valuable  consideration, 
the  last-mentioned  transfer  shall  have  the  same  effect  for  de- 
feating any  vendor's  lien  or  right  of  stoppage  in  transitu  as 
the  transfer  of  a  bill  of  lading  has  for  defeating  the  right  of 
stoppage  in  transitu. 


APPENDIX.  483 


Supplemental* 

II.  For  the  purposes  of  this  act,  the  transfer  of  a  docu- 
ment may  be  by  endorsement,  or,  where  the  document  is  by 
custom  or  by  its  express  terms  transferable  by  delivery,  or 
makes  the  goods  deliverable  to  the  bearer,  then  by  de- 
livery. 

12. — (i)  Nothing  in  this  act  shall  authorize  an  agent  to 
exceed  or  depart  from  his  authority  as  between  himself  and 
his  principal,  or  exempt  him  from  any  liability,  civil  or  crim- 
inal, for  so  doing. 

(2)  Nothing  in  this  act  shall  prevent  the  owner  of  goods 
from  recovering  the  goods  from  an  agent  or  his  trustee  in 
bankruptcy  at  any  time  before  the  sale  or  pledge  thereof, 
or  shall  prevent  the  owner  of  goods  pledged  by  an  agent  from 
having  the  right  to  redeem  the  goods  at  any  time  before  the 
sale  thereof,  on  satisfying  the  claim  for  which  the  goods  were 
pledged,  and  paying  to  the  agent,  if  by  him  required,  any 
money  in  respect  of  which  the  agent  would  by  law  be  entitled 
to  retain  the  goods  or  the  documents  of  title  thereto,  or  any 
of  them,  by  way  of  lien  as  against  the  owner,  or  from  recov- 
ering from   any  person  with  whom   the   goods   have  been 
pledged  any  balance  of  money  remaining  in  his  hands  as  the 
produce  of  the  sale  of  the  goods  after  deducting  the  amount 
of  his  lien. 

(3)  Nothing  in  this  act  shall  prevent  the  owner  of  goods 
sold  by  an  agent  from  recovering  from  the  buyer  the  price 
agreed  to  be  paid  for  the  same,  or  any  part  of  that  price, 
subject  to  any  right  of  set  off  on  the  part  of  the  buyer  against 
the  agent. 

13.  The  provisions  of  this  act  shall  be  construed  in  am- 
plification and  not  in  derogation  of  the  powers  exercisable 
by  an  agent  independently  of  this  act. 

14.  The  enactments  mentioned  in  the  schedule  to  this  act 
are  hereby  repealed  as  from  the  commencement  of  this  act, 
but  this  repeal  shall  not  affect  any  right  acquired  or  liability 


484  APPENDIX. 

incurred  before  the  commencement  of  this  act  under  any  en- 
actment hereby  repealed.  [The  enactments  mentioned  in  the 
schedule  are  4  Geo.  IV,  c.  83 ;  6  Geo.  IV,  c.  94;  5  &  6  Viet, 
c.  39;  40&4I  Viet.  c.  39.] 

15.  This  act  shall  commence  and  come  into  operation  on 
the  first  day  of  January,  one  thousand  eight  hundred  and 
ninety. 

1 6.  This  act  shall  not  extend  to  Scotland. 

17.  This  act  may  be  cited  as  the  Factors  Act,  1889. 


TABLE  OF  CASES  CITED. 


A 

Plgt 

Abbe  v.  Rood,  6  McLean  (U.  S.)  106,  Fed.  Gas.  No.  6 69 

Abbey  v.  Chase,  6  Gush.  (Mass.)  54 336 

Abbott  v.  Hapgood,  150  Mass.  248,  22  N.  EX  907,  5  L,  R.  A.  586, 

15  Am.  St  Rep.  193 56 

Abels  v.  McKeen,  18  N.  J.  Eq.  462 .. 112 

Aberdeen  Ry.  v.  Blakie,  2  Eq.  R.  1281 416 

Abernathy  v.  Wheeler,  92  Ky.  320,  17  S.  W.  858,  36  Am.  St  Rep. 

593   380 

Abraham  v.  Deakln  (1891)  1  Q.  B.  516 278,  279 

Adams  v.  Hall,  37  L.  T.  70 367 

v.  Power,  52  Miss.  828 64 

v.  Railroad  Co.,  125  N.  C.  565,  34  S.  E.  642 44 

y.  Robinson,  65  Ala.  586 396-398 

Adams  Exp.  Co.  v.  Schlessinger,  75  Pa.  246 190 

v.   Trego,  35  Md.  47 169 

Adamson  v.  Hartman,  40  Ark.  58 24 

v.  Jarvis,  4  Bing.  66 457,  461 

Addie  v.  Bank,  L.  R.  1  Sc.  &  D.  145,  158,  166,  167 284 

Addison  v.  Gandesqui,  4  Taunt  574,  580 364,  366 

Adriance  v.  Rutherford,  57  Mich.  170,  23  N.  W.  718 141,  146 

&tna  Ins.  Co.  v.  Church,  21  Ohio  St  492 424 

v.  Iron  Co.,  21  Wis.  458 72 

v.  Sabine,  6  McLean  (U.  S.)  393,  Fed.  Oas.  No.  97 87 

A.  G.  v.  Corporation  of  Leicester,  7  Beav.  176 382 

Aggs  v.  Nicholson,  1  H.  &  N.  293 343 

Ahern  v.  Baker,  34  Minn.  98,  24  N.  W.  341.... 134,  135 

v.  Goodspeed,  72  N.  Y.  108 207 

Alba  v.  Moriarty,  36  La.  Ann.  680 141 

Albany  &  R.  Iron  &  Steel  Co.  v.  Lundberg,  121  U.  S.  451,  7  Sup. 

Ct  958,  30  L.  Ed.  982 387,  388 

Albitz  v.  Railroad  Co.,  40  Minn.  476,  42  N.  W.  394 289 

Alexander  v.  Gibson,  2  Camp.  555 208 

v.  Jones,  64  Iowa,  207,  19  N.  W.  913 09,  210 

v.  McKenzie,  6  C.   B.  766 198 

(485) 


486  CASES   CITED. 

Page 

Alexander  v.  Slzer,  L.  R.  4  Ex.  102 342 

v.  Southey,  5  B.  &  Aid.  247 381 

Alger  v.  Anderson  (O.  C.)  78  Fed.  729 289 

v.  Keith,  44  C.  0.  A.  371,  105  Fed.  105 229 

Allan  v.  Miller,  22  L.  T.  825 343 

Allen  v.  Bank,  120  U.  S.  20,  7  Sup.  Ct.  460,  30  L.  Ed.  573 

178,  223,  320,  321 

22  Wend.  (N.  Y.)  215,  34  Am.  Dec.  289 129,  408 

v.  Bryson,  67  Iowa,  591,  25  N.  W.  820,  56  Am.  Rep.  358 444 

v.  Doe,  31  Ga.  544 417 

V.  Engineers'  Co.,  196  Pa.  512,  46  Atl.  899 450 

v.  Railway,  L.  R.  6  Q.  B.  65 279 

v.  Ogden,  1  Wash.  0.  0.  (U.  S.)  174,  Fed.  Gas.  No.  233 190 

V.  Pierpont  (C.  C.)  22  Fed.  582 454 

v.  Publishing  Co.,  81  Wis.  120,  50  N.  W.  1093. 278 

v.  Railroad  Co.,  150  Mass.  200,  22  N.  E.  917,  5  L.  B.  A.  716, 

15  Am.  St.  Rep.  185 263,  264,  293 

v.  Suydham,  20  Wend.  (N.  Y.)  321,  32  Am.  Dec.  555 408 

v.  Withrow,  110  U.  S.  119,  3  Sup.  Ct.  517,  28  L.  Ed.  90 25 

Allis  v.  Goldsmith,  22  Minn.  123 171 

Allkins  v.  Jupe,  2  C.  P.  D.  375 461 

Alsop  v.  Caines,  10  Johns.  (N.  Y.)  396 387,  390 

v.  Colt,  12  Mass.  40 399 

Amans  v.  Campbell,  70  Minn.  493,  73  N.  W.  506,  68  Am.  St.  Rep. 

547 363 

American  Bonding  &  Trust  Co.  v.  Takahashi,  49  C.  C.  A.  267, 

111  Fed.  125 361 

American  Loan  &  Trust  Co.  v.  Billings,  58  Minn.  187,  59  N.  W. 

998    160,  163 

American  Surety  Co.  v.  Pauly,  170  U.  S.  133,  18  Sup.  Ct  552,  553, 

42  L.  Ed.  977 263 

Ames  v.  Oilman,  10  Mete.  (Mass.)  239 109 

v.  Railroad  Co.,  117  Mass.  541,  19  Am.  Rep.  426 328 

12  Minn.   413   (Gil.   295) 304 

Ancher  v.  Bank,  2  Doug.  63 198 

Ancona  v.  Marks,  7  H.  &  N.  686 81 

Anderson  v.  Pearce,  36  Ark.  293,  38  Am.  Rep.  39 245 

v.  Sanderson,  Holt,  N.  P.  591 251 

2    Stark.    204 251 

V.  State,  2  Ga.  370 435 

22  Ohio  St.  305 298 

V.  Supreme  Council,  135  N.  Y.  107,  31  N.  E,  1092 32 


CASES   CITED.  487 

Page 
Anderson  T.  Timberlake,  114  Ala.  377,  22  South.  431,  62  Am.  St. 

Rep.  105  , 361 

v.  Weiser,  24  Iowa,  428 423 

Anderton  v.  Shoup,  17  Ohio  St.  125 245,  348 

Andres  v.  Wells,  7  Johns.  (N.  Y.)  260,  5  Am.  Dec.  267 278 

Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521 343,  357 

v.  Insurance  Co.,  92  N.  Y.  596,  604 85 

v.  Kneeland,  6  Oow.  (N.  Y.)  354 225 

Andrus  v.  Howard,  36  Vt.  248,  84  Am.  Dec.  680 281 

Angersinger  v.  McNaughton,  114  N.  Y.  535,  21  N.  E.  1022,  11  Am. 

St.  Rep.  687   207 

Angle  v.  Railroad  Co.,  151  U.  S.  1,  14  Sup.  Ct.  240,  38  L.  Ed.  55. .  329 

Anglo-Maltese  H.  D.  Co.,  In  re,  54  L.  J.  Oh.  730 471 

Angus  v.  Machlachan,  23  Ch.  D.  330 473 

Anon.,  12  Mod.  564 21 

1   Stre.   527 106 

v.  Harrison,  12  Mod.  952 138 

Ansonia  Co.,  In  re,  L.  R.  9  Ch.  635 245 

Appleton  Bank  v.  McGilvray,  4  Gray  (Mass.)  518,  64  Am.  Dec. 

92  117,  123,  126 

Arff  v.  Insurance  Co.,  125  N.  Y.  57,  25  N.  E.  1073,  10  L.  R.  A. 

609,  21  Am.  St  Rep.  721 121,  265 

Argersinger  v.  Macnaughton,  114  N.  Y.  535,  539,  21  N.  E.  1022,  11 

Am.   St.    Rep.   687 223,  363 

Arkansas  S.  R.  Co.  v.  Loughridge,  65  Ark.  907,  45  S.  W.  907 43 

Armitage  v.  Widoe,  36  Mich.  124 58,  59,  95 

Armour  v.  Gaffey,  165  N.  Y.  630,  59  N.  E.  1118 428 

30  App.  Div.  121,51  N.  Y.  Supp.  846 428 

y.  Railroad  Co.,  65  N.  Y.  Ill,  22  Am.  Rep.  603 200 

Armstrong  v.  Pease,  66  Ga.  70 456 

v.  Stokes,  L.  R.  7  Q.  B.  598,  605 241-243,  366 

Arnold  v.  Clifford,  2  Sumn.  (U.  S.)  238,  Fed.  Cas.  No.  555 92 

v.  Sprague,  34  Vt  402.  409 245,  339 

Arnot  v.   Biscoe,  1  Ves.  95 382 

Arrott  v.  Brown,  6  Whart.  (Pa.)  7 426 

Arthur  v.  Barton,  6  M.  &  W.  138 42,  221 

Ash  v.  Guie,  97  Pa.  493,  39  Am.  Rep.  818 , Ill 

Ashley  v.  Bird,  1  Mo.  640,  14  Am.  Dec.  313 171 

v.  Root,  4  Allen  (Mass.)  504 407 

Atchison  &  N.  R.  Co.  T.  Reecher,  24  Kan.  228 43 

Atkins  v.  Amber,  2  Esp.  493 389 

v.  Johnson,  43  Vt  78,  5  Am.  Rep.  260 92 


488  CASES  CITED. 

Page 

Atkinson  v.  Burton,  4  Bush  (Ky.)  299 409 

v.  Cotesworth,  3  B.  &  C.  647 390 

v.  Ward,  47  Ark.  533,  2  S.  W.  77 429 

Atlanta  Sav.  Bank  v.  Spencer,  107  Ga.  629,  33  S.  E.  878 134 

Atlantic  &  G.  W.  R.  Co.  v.  Dunn,  19  Ohio  St  162,  2  Am.  Rep. 

382    27o 

Atlantic  &  P.  R.  Co.  v.  Reisner,  18  Kan.  458 43 

Atlas  S.  S.  Co.  v.  Land  Co.,  42  0.  C.  A.  398,  102  Fed.  358 365 

Atlee  v.  Bartholomew,  69  Wis.  43,  33  N.  W.  110,  5  Am.  St.  Rep. 

103   82 

v.  Fink,  75  Mo.  100,  43  Am.  Rep.  385 93,  419,  462 

Attorney  General  v.  Chesterfield,  IS  Beav.  576 427 

Attwood  v.  Munnings,  7  B.  &  C.  278 168,  169,  171,  198 

Audenried  v.  Betteley,  8  Allen  (Mass.)  302 149 

Au  Sable  River  Boom  Co.  v.  Sanborn,  36  Mich.  358 470 

Australia,  The,  Swab.  480 42,  69 

Australian  Steam  Nav.  Co.  v.  Morse,  L.  R.  4  P.  C.  222 42 

Auty  v.  Hutchinson,  6  O.  B.  266 367 

Avakian  v.  Noble,  121  Cal.  216,  53  Pac.  559 48 

Averill  v.  Williams,  4  Denio  (N.  Y.)  295,  47  Am.  Dec.  252 282 

Avery  v.  Dougherty,  102  Ind.  443,  2  N.  E.  123,  52  Am.  Rep.  680. .  359 

Aycrigg  v.  Railroad  Co.,  30  N.  J.  Law,  460 270 

Ayrault  v.  Bank,  47  N.  Y.  570,  7  Am.  Rep.  489 ^129,  131 


B 

Babcock  v.  Beman,  11  N.  Y.  200 350,  351 

Backman  v.  Charlestown,  42  N.  H.  125 .....198 

Bacon  v.  Johnson,  56  Mich.  182,  22  N.  W.  276 65 

y.  Railroad  Co.,  55  Mich.  224,  21  N.  W.  324,  54  Am.  Rep. 

372 ,.,..  278 

Badger  v.  Bank,  26  Me.  428 220 

Badger  Silver  Min.  Co.  v.  Drake,  31  C.  C.  A.  378,  S8  Fed.  48....  244 

Baer  v.  Stevenson,  30  L.  T.  117 385 

Baermister  v.  Fenton,  1  C.  &  E.  121 361 

Bailey  v.  Bensley,  87  111.  556 177,  178,  398 

Baily  v.  Burgess,  48  N.  J.  Eq.  411,  22  Atl.  733 458 

Bain  v.  Brown,  56  N.  Y.  285 417,  423 

Baines  v.  Ewing,  4  H.  &  C.  511 219 

L.  R.  1  Ex.  320,  1  H.  &  C.  511 196 

Baird  v.  Shipman,  132  111.  16,  23  N.  E.  384,  7  L.  R.  A.  128,  22 
Am.  St.  Rep.  504 385 


CASES   CITED.  489 

x 

Page 

Baker  v.  Bank,  100  N.  T.  31,  2  N.  E.  452,  53  Am.  Rep.  150 325 

v.  Freeman,  35  Me.  485 23 

v.  Joseph,  16  Cal.  173 ..431,  434 

v.  Produce  Co.,  113  Mich.  533,  71  N.  W.  866 184 

v.  Whiting,  3  Sumn.  (U.  S.)  475,  Fed.  Cas.  No.  787 420 

Baldwin  v.  Bank,  1  La.  Ann.  13,  45  Am.  Dec.  72 120,  131 

1  Wall.  (U.  S.)  234,  17  L.  Ed.  534 308,  351 

v.  Burrows,   47   N.   Y.   199 72,289 

v.  Leonard,  39  Vt.  260,  94  Am.  Dec.  324 363 

v.  Potter,  46  Vt.  402 425 

Baldwin  Fertilizer  Co.  v.  Thompson,  106  Ga.  480,  32  S.  E.  591. .     69 

Balfe  v.  West,  13  C.  B.  466 18,  402 

Ball  T.  Dunsterville,  4  T.  R.  313 21 

Ballard  v.  Insurance  Co.,  119  N.  C.  187,  25  S.  E.  956 154 

Ballou  v.  Talbot,  16  Mass.  461,  8  Am.  Dec.  146 342,  369 

Baltimore  Coal  Tar  &  Mfg.  Co.  v.  Fletcher,  61  Md.  288 304 

Baltimore  &  O.  R.  Co.  v.  Wilkens,  44  Md.  11,  22  Am.  Rep.  26. .  200 
Baltimore  &  Y.  Turnpike  Road  v.  Green,  86  Md.  161,  37  Atl. 

642   279 

Baltzen  v.  Nicolay,  53  N.  Y.  467 370,  374 

Bamber  v.  Savage,  52  Wis.  110,  8  N.  W.  609,  38  Am.  Rep.  723. .  225 

Bank  v.  Cook,  38  Ohio  St.  442 339 

Bank  of  Augusta  v.  Courey,  28  Miss.  667 81 

Bank  of  Batavia  v.  Railroad  Co.,  106  N.  Y.  195,  12  N.  E.  433,  60 

Am.    Rep.    440 200 

Bank  of  British  North  America  v.  Hooper,  5  Gray  (Mass.)  567, 

66  Am.  Dec.  390 344 

Bank  of  Columbia  v.  Patterson,  7  Cranch  (U.  S.)  299,  3  L.  Ed. 

351 31 

Bank  of  Genesee  v.  Bank,  13  N.  Y.  309 351 

Bank  of  Kentucky  v.  Express  Co.,  93  U.  S.  174,  23  L.  Ed.  872. .  126 

Bank  of  Lindsborg  v.  Ober,  31  Kan.  599,  3  Pac.  324 131 

Bank  of  Louisville  v.  Bank,  8  Baxt.  (Tenn.)  101,  35  Am.  Rep.  691  129 

,Bank  of  Manchester  v.  Slason,  13  Vt.  334 351 

Bank  of  Montreal  v.  Thayer  (C.  C.)  7  Fed.  623 283 

Bank  of  New  York  v.  Bank,  29  N.  Y.  619 351 

v.  Vanderhorst,  32  N.  Y.  553 144 

Bank  of  New  York  Nat.  Banking  Ass'n  v.  Trust  Co.,  143  N.  Y. 

559,  38  N.  E.  713 293 

Bank  of  Owensboro  v.  Bank,  13  Bush    (Ky.)  526,  26  Am.  Rep. 

211    87,  408 

Bank  of  Palo  Alto  v.  Cable  Co.  (C.  O.)  103  Fed.  841 294 


490  CASES   CITED. 

Page 
Bank  of  Rochester  r.  Monteath,  1  Denio  (N.  T.)  402,  43  Am. 

Dec.   681 338 

Bank  of  State  v.  Wheeler,  21  Ind.  90 351 

Bank  of  United  States  v.  Dandridge,  12  Wheat.  (U.  S.)  64,  6  L. 

Ed.   552    31 

v.  Davis,  2  Hill  (N.  Y.)  451 266,  267 

Banner  Tobacco  Co.  v.  Jenison,  48  Mich.  459,  12  N.  W.  655 217 

Banning  v.  Bleakley,  27  La.  Ann.  257,  21  Am.  Rep.  554 430 

Bannon  v.  Warfield,  42  Md.  22 .72,  408 

Banorgee  v.  Hovey,  5  Mass.  11,  4  Am.  Dec.  17 21 

Barbour  v.  Wiehle,  116  Pa.  308,  9  Atl.  520 260 

Barham  v.  Bell,  112  N.  C.  131,  16  S.  E.  903 304,  367 

Baring  v.  Corrie,  2  B.  &  Aid.  137 222,  224,  312,  313 

Barker  v.  Furlong  (1891)  2  Ch.  172 381 

v.  Insurance  Co.,  3  Wend.  (N.  Y.)  98,  20  Am.  Dec.  664 348 

v.  St  Quentin,  12  M.  &  W.  451 467 

Barksdale  v.  Brown,  1  Nott.  (S.  C.)  517 178,  398 

Barlow  v.  Society,  8  Allen  (Mass.)  460 339,  342-344 

Barnard  v.  Coffin,  141  Mass.  37,  6  N.  E.  364,  55  Am.  Rep.  443 

123-126 

v.  Jewett,  97  Mass.  87 421 

Barnes  v.  Smith,  159  Mass.  344,  34  N.  E.  403 460 

v.  State,  19  Conn.  398 298 

Barney  v.  Newcomb,  9  Cush.  (Mass.)  46 351 

Barns  v.  Hannibal,  71  Mo.  449 176 

Baron  v.  Husband,  4  B.  &  Ad.  611 379 

Barr  v.  Lapsley,  1  Wheat.  (U.  S.)  151,  4  L.  Ed.  58 16 

Barrett  v.  Deere,  Moo.  &  M.  200 35,  37 

v.  Railroad  Co.,  45  N.  Y.  628 228 

Barron  v.  Fitzgerald,  6  Bing.  (N.  C.)  201 456 

Barrow  v.  Dyster,  13  Q.  B.  D.  635 361 

Barrows  v.  Cushway,  37  Mich.  481 142 

Barry  v.  Croskey,  2  Johns.  &  H.  1,  22 283 

v.  Page,  10  Gray  (Mass.)  398 366 

v.  Pike,  21  La.  Ann.  221 372 

Bartholomew  v.  Dighton,  Cro.  Eliz.  424 , 95 

v.  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am.  Dec.  237 444 

Bartlett  v.  Hamilton,  46  Me.  435 430 

v.  Hawley,  120  Mass.  92 350 

v.  Smith  (C.  C.)  13  Fed.  263 456 

v.  Sparkman,  95  Mo.  136,  8  S.  W.  406,  6  Am.  St.  Rep.  35 403 

v.  Tucker,  104  Mass.  336,  6  Am.  Rep.  240 369,  375 

Barton  v.  Moss,  32  111.  50 422 


CASES   CITED.  491 

Page 

Berwick  r.  Bank,  L.  R.  2  Ex.  259 269,  283,  284,  286,  296 

Barziza  v.  Story,  39  Tex.  354 420 

Bateman  v.  Phillips,  15  East,  272 233 

Bates  v.  Mortgage  Co.,  37  S.  C.  88,  16  S.  E.  883,  21  L.  R.  A.  340  266 

v.  Pilling,  6  B.  &  C.  38 281 

Batturs  v.  Sellers,  5  Har.  &  J.  (Md.)  117,  9  Am.  Dec.  492 29 

Batty  v.  Carswell,  2  Johns.  (N.  Y.)  48 215 

Baum  v.  Dubois,  43  Pa.  260 21 

v.  Mullen,  47  N.  Y.  577 102 

Bawden  v.  Assurance  Co.  (1892)  2  Q.  B.  534 259 

Baxter  v.  Burfield,  2  Str.  1266 145 

v.  Gray,  3  M.  &  G.  771 443 

v.  Sherman,  73  Minn.  434,  436,  438,  76  N.  W.  211,  72  Am. 

St  Rep.  631 310-312 

Bayley  v.  Railway,  L.  R.  8  C.  P.  148 272 

Bayliffe  v.  Butterwortb,  1  Ex.  425 458 

Beach  v.  Bank,  2  Ind.  488 354 

v.  Branch,  57  Ga.  362 457 

Beal  v.  Railway,  3  H.  &  C.  337,  342 413 

Beall,  Ex  parte,  24  Ch.  D.  408 471 

Beaman  v.  Whitney,  20  Me.  413 215 

Bean  v.  Mining  Co.,  66  Cal.  451,  6  Pac.  86,  56  Am.  Rep.  106 346 

Beardslee  v.  Richardson,  11  Wend.  (N.  Y.)  25,  25  Am.  Dec.  596. .  411 

Beattle  v.  Ebury,  L.  R.  7  H.  L.  102 373 

L.  R.  7  Ch.  777 373 

Becker  v.  Lament,  13  How.  Prac.  (N.  Y.)  23 360 

Beckham  v.  Drake,  9  M.  &  W.  79 Ill 

Bedell  v.  Janney,  9  111.  193 432,  435 

Beecher  v.  Venn,  35  Mich.  466 217 

Beldon  v.  Campbell,  6  Ex.  886 42,  221 

Belfleld  v.  Supply  Co.,  189  Pa.  189,  42  Atl.  131,  69  Am.  St  Rep. 

799 313,  314 

Belknap  v.  Reinhart,  2  Wend.  (N.  Y.)  375,  20  Am.  Dec.  621 367 

Bell  v.  Cunningham,  3  Pet  (U.  S.)  69,  7  L.  Ed.  606 72,  407 

v.  Josselyn,  3  Gray,  309,  63  Am.  Dec.  741 383 

v.  McConnell,  37  Ohio  St  396,  41  Am.  Rep.  528 419 

v.  Offutt,  10  Bush    (Ky.)  632 191 

Bellemire  v.  Bank,  4  Whart  (Pa.)  105,  33  Am.  Dec.  46 131 

Beller  v.  Block,  19  Ark.  566 389 

Bell's  Gap  R.  Co.  v.  Cristy,  79  Pa.  54,  21  Am.  Rep.  39 57 

Belt  v.  Power  Co.,  24  Wash.  387,  64  Pac.  525 236 

Bement  &  Sons  v.  Armstrong  (Tenn.  Ch.  App.)  39  S.  W.  899. ..     69 
Benden  v.  Manning,  2  N.  H.  289... 18,  410,  413 


492  CASES   CITED. 

Page 

Benedict  v.  Smith,  10  Paige  (N.  Y.)  126 228 

Benjamin  v.  Dockham,  134  Mass.  418 40 

Bennecke  v.  Insurance  Co.,  105  U.  S.  355,  26  L.  Ed.  990 72 

Bennett  v.  Bayes,  5  H.  &  N.  391 380 

v.  Davis,  6  Cow.  (N.  Y.)  393 94 

v.  Ives,  30  Conn.  329 380 

v.  Judson,  21  N.  Y.  238. 288 

v.  Lathrop,  71  Conn.  613,  42  Atl.  634,  71  Am.  St.  Rep.  222. .  112 

Benoit  v.  Inhabitants,  10  Allen  (Mass.)  528 135 

Benschoter  v.  Lack,  24  Neb.  251,  38  N.  W.  746 169 

Benson  v.  Carr,  73  Me.  76 228 

v.  Heathorn,  1  Y.  &  Coll.  C.  C.  326 435 

v.  Liggett,  78  Ind.  452 68 

Bent  v.  Cobb,  9  Gray  (Mass.)  397,  69  Am.  Dec.  295 108,  109 

Bentley  v.  Craven,  18  Beav.  75 416,  417 

v.  Doggett,  51  Wis.  224,  8  N.  W.  155,  37  Am.  Rep.  827. ... 

177,  184,  186,  195 

Benton  v.  Mfg.  Co.,  73  Minn.  498,  76  N.  W.  265 264 

Bergen  v.  Bennett,  1  Caines,  Oas.  (N.  Y.)  1,  2  Am.  Dec.  281 158 

Berger's  Appeal,  96  Pa.  443 88 

Bergh  v.  Warner,  47  Minn.  250,  252,  50  N.  W.  77,  28  Am.  St.  Rep. 

362    41 

Berkeley  v.  Hardy,  8  D.  &  R.  102,  4  B.  &  C.  355 21,  244,  308 

Berkey  v.  Judd,  22  Minn.  287 333 

Bernard  v.  Maury,  20  Grat.  (Va.)  434 402 

Berushouse  v.  Abbott,  45  N.  J.  Law,  531,  46  Am.  Rep.  789 313 

Berry  v.  Anderson,  22  Ind.  36 195 

v.  Skinner,  30  Md.  567 158 

Bertoll  v.  Smith,  69  Vt.  425,  38  Atl.  76 313 

Bertram  v.  Godfrey,  1  Knapp,  381 173,  399 

Bessent  v.  Harris,  63  N.  C.  542 / 173,  404 

Betts  v.  Gibbins,  2  Ad.  &  B.  57 461 

Beyer  v.  Bush.  50  Ala.  19 394 

Beymer  v.  Bonsall,  79  Pa.  298 239,  362 

Bibb  v.  Allen,   149  U.  S.  481,  498,  13  Sup.  Ct.  950,  37  L.  Ed. 

819    178,  456-458,  461 

Bickerton  v.  Burrell,  5  M.  &  S.  383 392 

Bickford  v.  Menier,  107  N.  Y.  490,  14  N.  E.  438 218 

Biddle-  v.  Bond,  6  B.  &  S.  225 424,  425 

Bigelow  v.  Heaton,  6  Hill  (N.  Y.)  43 472 

v.  Livingston,  28  Minn.  57,  9  N.  W.  31 169 

v.  Walker,  24  Vt  149,  58  Am.  Dec.  156 409 

v.  Stone,  3  Sm.  &  Gif.  592 ....     70 


CASES   CITED.  493 

Page 

Biggs  T.  Evans  (1894)  1  Q.  B.  88 205,  206,  316,  320 

Bigham  v.  Railroad  Co.,  79  Iowa,  534,  44  N.  W.  805 43 

Billings  v.  Mason,  80  Me.  496,  15  Atl.  59 61 

v.  Morrow,  7  Gal.  172,  68  Am.  Dec.  235 171 

Billington  v.  Com.,  79  Ky.  400 28 

Bird  v.  Brown,  4  Ex.  786 47,  77,  78 

Bischoffshetm  v.  Baltzer  (0.  0.)  20  Fed.  890 416 

Bishop  v.  Mahoney,  70  Minn.  238,  73  N.  W.  6 326 

Bissell  v.  Terry,  69  111.  184 134 

Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am.  Rep.  475 329 

v.  Moor,  51  N.  H.  402 460 

Blackburn  v.  Haslam,  21  Q.  B.  D.  144 259 

v.  Scholer,  2  Camp.  341,  343 134 

v.  Vigors,  12  App.  Cas.  531,  537 259,  263 

Blackmer  v.  Mining  Co.,  187  111.  32,  58  N.  E.  289 202 

Blacknall  v.  Parish,  59  N.  C.  70,  78  Am.  Dec.  239 23 

Blackstone  v.  Buttermore,  53  Pa.  266 136,  154,  448 

Blackwell  v.  Ketcham,  53  Ind.  184,  186 190,  194,  196,  215 

Blader  v.  Free,  9  B.  &  C.  167 144 

Blair  v.  Sbaeffer  (C.  C.)  33  Fed.  218 454 

Blakely  v.  Bennecke,  59  Mo.  193 Ill 

Blakley  v.  Cochran,  117  Mich.  394,  75  N.  W.  940 62 

Blanchard  v.  Inhabitants,  102  Mass.  343 244 

v.  Jones,   101  Ind.  542 423 

v.  Kaull,  44  Cal.  440 343 

v.  Page,  8  Gray  (Mass.)  281 387 

Bleau  v.  Wright,  110  Mich.  183,  68  N.  W.  115 361,  378 

Bledsoe  v.  Irvin,  35  Ind.  293 455 

Blind  v.  Dupuy,  31  La.  Ann.  305 427 

Bliss  v.  Arnold,  8  Vt.  252,  30  Am.  Dec.  467 398,  400 

v.  Bliss,  7  Bosw.  339 313 

v.  Sneath,  103  Cal.  43,  36  Pac.  1029 390 

Bliven  v.  Railroad  Co.,  36  N.  T.  403 424 

Blodgett's  Estate  v.  Converse's  Estate,  60  Vt.  410,  15  Atl.  109. ...  435 

Blood  v.  French,  9  Gray  (Mass.)  197 227 

v.  Goodrich,  9  Wend.  (N.  Y.)  68,  24  Am.  Dec.  121 21 

12  Wend.  (N.  Y.)  525,  27  Am.  Dec.  152 63 

Blot  v.  Boiceau,  3  N.  Y.  78,  51  Am.  Dec.  345 396,  398,  400 

Blue  v.  Briggs,  12  Ind.  App.  105,  39  N.  E.  885 380 

Blumenthal  v.  Shaw,  23  C.  C.  A.  590,  77  Fed.  954 278 

Board  of  Justices  v.  Fennimore,  1  N.  J.  Law,  242 435 

Boast  v.  Firth,  L.  R.  C.  P.  1 452 

Boatright  v.  State,  77  Ga.  717 .  301 


494  CASES  CITED. 

Page 

Bock  T.  Gorrlson,  30  L.  J.  Ch.  39 465,  469 

Bodine  v.  Insurance  Co.,  51  N.  Y.  117,  10  Am.  Rep.  566 121 

v.  Killeen,  53  N.  Y.  93 38,  102 

Bohanan  v.  Railroad,  70  N.  H.  526,  49  Atl.  103 256,  263 

Bohart  v.  Oberne,  36  Kan.  284,  13  Pac.  388 72,  196 

Boinest  v.  Leignez,  2  Rich.  Law  (S.  C.)  464 227 

Bollraan  v.  Loomis,  41  Conn.  581 419 

Bolton  Partners  v.  Lambert  (1889)  41  Ch.  D.  295 84 

Bonita,  The,  v.  The  Charlotte,  Lush.  252 65,72 

Bonito  v.  Mosquera,  2  Bosw.  (N.  Y.)  401 321,  323 

Bonney  v.  Morrill,  57  Me.  368 229 

Bool  v.  Mix,  17  Wend.  (N.  Y.)  120,  31  Am.  Dec.  285 94 

Boorman  v.  Brown,  3  Q.  B.  511 224 

Booth  v.  Barron,  29  App.  Div.  66,  51  N.  Y.  Supp.  391 238 

v.  Wiley,  102  111.  84 69 

Boothby  v.  Scales,  27  Wis.  636 208 

Borcherling  v.  Katz,  37  N.  J.  Eq.  150 244 

Borough  of  Milford  v.  Water  Co.,  124  Pa.  610,  17  Atl.  185,  3  L. 

R.  A.  122 49 

Borries  v.  Imperial  Ottoman  Bank,  L.  R.  9  C.  P.  38 311 

Bosanquet  Y.  Dudman,  1  Stark.  1. 471 

Bosseau  v.  O'Brien,  4  Biss.  (U.  S.)  395,  Fed.  Cas.  No.  1,667.... 21,  72 

Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  25  Am.  Rep.  9 306 

Boston  Iron  Co.  v.  Hale,  8  N.  H.  363 211 

Boston  &.M.  R.  v.  Whitcher,  1  Allen  (Mass.)  497 363 

Boswell  v.  Cunningham,  32  Pla.  277,  13  South.  354,  21  L.  R. 

A.  54  420,421 

Botsford  v.  Burr,  2  Johns.  Ch.  406 421 

Botteler  v.  Newport,  Y.  B.  21  Hen.  VI.  31 95 

Boulton  v.  Jones,  2  H.  &  N.  564 314 

Bourlier  v.  Macauley,  91  Ky.  135,  15  S.  W.  60,  11  L.  R.  A.  550, 

34  Am.  St.  Rep.  171 329 

Bowen  v.  Hall,  6  Q.  B.  D.  339 329 

Bower  v.  Jones,  8  Bing.  65 441,  442 

Bowes,  In  re,  33  Oh.  D.  586 469 

Bowler  v.  O'Connell,  162  Mass.  319,  38  N.  E.  498,  27  L.  R.  A.  173, 

44  Am.  St.  Rep.  359 271 

Bowling  Green  Sav.  Bank  v.  Todd,  52  N.  Y.  489 467 

Bowman  v.  Officer,  53  Iowa,  640,  6  N.  W.  28 422 

Boyce  v.  Bank  (0.  C.)  22  Fed.  53 223 

Boyd  v.  Vanderkemp,  1  Barb.  Ch.  273 265 

Boyer  v.  Berrymen,  123  Ind.  451,  24  N.  E.  249 98 

Boyes  v.  Coles,  6  M.  &  S.  14 .  316 


CASES   CITED.  495 

Page 

Bracegirdle  v.  Heald,  1  B.  &  Aid.  722 30 

Bracey  v.  Carter,  12  Ad.  &  E.  373 455 

Bradish  v.  Belknap,  41  Vt.  172 34,  36 

Bradlee  v.  Manufactory,  16  Pick.  (Mass.)  347 344 

Bradstreet  v.  Baker,  14  R.  I.  546 334,  335 

v.  Everson,  72  Pa.  124,  13  Am.  Rep.  665 131,  132 

Brady  v.  Mayor,  16  How.  Prac.  (N.  Y.)  432 59 

v.  Todd,  9  Q  B.  (N.  S.)  592 208 

Brahn  v.  Forge  Co.,  38  N.  J.  Law,  74 80 

Bramel  r.  Byron  (Ky.)  43  S.  W.  695 28 

Brandao  v.  Barnett,  12  0.  &  F.  787,  3  C.  B.  519 466,  469-471 

Brandup  v.  Insurance  Co.,  27  Minn.  393,  7  N.  W.  735 218 

Brannan  v.  Strauss,  75  111.  234 455 

Brantley  v.  Insurance  Co.,  53  Ala.  554 168 

Bray  v.  Gunn,  53  Ga.  144 69,  87 

v.  Kettell,  1  Allen  (Mass.)  80 181,  366 

Breming  v.  Mackie,  3  F.  &  F.  197 214 

Brewer  v.  Sparrow,  7  B.  &  C.  310 65 

Brewster  v.  Carnes,  103  N.  Y.  556,  9  N.  E.  323 213,  214 

Brewster  v.  Van  Liew,  119  111.  554,  8  N.  E.  842 224 

Brexell  v.  Christie,  Cowp.  395 404 

Bridgeport  Bank  v.  Railroad  Co.,  30  Conn.  274 25 

Bridger  v.  Savage,  15  Q.  B.  D.  363 425 

Bridges  v.  Garrett,  L.  R.  5  C.  P.  451 214 

Briggs  v.  Briggs,  46  Vt  571 443 

v.  Hodgson,  78  Me.  514,  7  Atl.  387 422 

v.  Partridge,  64  N.  Y.  357,  21  Am.  Rep.  617 244 

v.  Spaulding,  141  U.  S.  132,  11  Sup.  Ct.  924,  35  L.  Ed.  662. .  412 

Brigham  v.  Herrick,  173  Mass.  460,  53  N.  E.  906 362 

v.  Palmer,  3  Allen  (Mass.)  450 61 

v.  Peters,  1  Gray  (Mass.)  139 69,  256 

Brinkley  v.  Swicegood,  65  N.  C.  626 449 

Brinley  v.  Mann,  2  Cush.  (Mass.)  337,  48  Am.  Dec.  669 334 

Bristow  v.  Whitmore,  9  H.  L.  Cas.  391 61 

British  Mutual  Bank  v.  Charnwood  Forest  Ry.,  18  Q.  B.  D.  714 

289,  290 

Britt  v.  Hays,  21  Ga.  157 449 

Brittin  v.  Wilder,  6  Hill    (N.  Y.)  242 101 

Britton  v.  Nlccolls,  104  U.  S.  757,  26  L.  Ed.  917 131 

v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713 454 

Broad  v.  Thomas,  7  Bing.  99 443,  448 

Broadbent  v.  Barlow,  3  De  Gex,  F.  &  J.  570 325 

Brock  v.  Jones,  16  Tex.  461 76 


496  CASES   CITED. 


Brockway  Y.  Allen,  17  Wend.  (N.  Y.)  40 ...,...,..,..  340 

v.  Mullin,  46  N.  J.  Law,  448,  50  Am.  Rep.  442 217 

Bronson  v.  Chappell,  12  Wall.  (U.  S.)  681,  20  L.  Ed.  436 82 

Bronson's  Ex'r  v.  Chappell,  12  WaU.  (U.  S.)  681,  20  L.  Ed.  436. .     34 

Broomhead,  In  re,  5  D.  &  L.  52 467 

16  L.  J.  Q.  B.  355 473 

Brook  v.  Hook,  L,.  R.  6  Ex.  89 50,  51 

Brooke  v.  Railroad  Co.,  108  Pa.  529,  1  Atl.  206,  56  Am.  Rep.  235  200 

Brooks  v.  Hassell,  49  L.  T.  569 208 

v.  Martin,  2  Wall.  (U.  S.)  70,  17  L.  Ed.  732 425 

v.  Town  of  New  Durham,  55  N.  H.  559 228 

Brookshire  v.  Brookshire,  30  N.  C.  74,  47  Am.  Dec.  341 137 

Brothers  v.  Bank,  84  Wls.  381,  54  N.  W.  786,  36  Am.  St.  Rep.  932  261 

Broughton  v.  Silloway,  114  Mass.  71,  19  Am.  Rep.  312 214,  227 

Brown  v.  Ames,  59  Minn.  '476,  61  N.  W.  448 363 

v.  Arrott,  6  Watts.  &  S.  (Pa.)  418 431,  433 

v.  Austin,  1  Mass.  208,  2  Am.  Dec.  11 367 

v.  Bamberger,  110  Ala.  342,  20  South.  114 74 

V.  Bradlee,  156  Mass.  28,  30  N.  E.  85,  15  L.  R.  A.  509,  32 

Am.  St.  Rep.  430 358,  367 

V.  Brown,  34  Barb.   (N.  Y.)  533 93 

V.  Clayton,  12  Ga.  574 457 

v.  Cushman,  173  Mass.  368,  53  N.  E.  860 144 

v.  Eaton,  21  Minn.  409 21 

V.  Henry,  172  Mass.  559,  52  N.  E.  1073 62 

V.  Lally,  79  Minn.  38,  81  N.  W.  538 209 

v.  Lent,  20  Vt.  529 385 

T.  McGran,  14  Pet.  (U.  S.)  479,  10  L.  Ed.  550 404 

v.  Railroad  Co.,  67  Mo.   122 43 

v.  Reiman,  48  App.  Div.  295,  62  N.  Y.  Supp.  663...... 239 

T.  Southhouse,  3  Bro.  O.  C.  107 435 

V.  Staton,  2  Chit.  353 227 

v.  West,  69  Vt.  440,  38  Atl.  87 197 

v.  Wilson,  45  S.  C.  519,  23  S.  E.  630,  55  Am.  St.  Rep.  779. ..     62 
Browning  v.  Hinkle,  48  Minn.  544,  51  N.  W.  605,  31  Am.  St.  Rep. 

691    288 

Bruce  v.  Reed,  104  Pa.  408,  49  Am.  Rep.  586 278 

Brunswick  v.  Growl,  4  Ex.  492 459 

Brunswlck-Balke-Collender  Co.  v.  Boutell,  45  Minn.  21,  47  N. 

W.  261   340 

Bryant  v.  Flight,  5  M.  &  W.  114 441 

v.  La  Banque  du  People  (1893)  A.  C.  170 168 

T.  Moore,  26  Me.  84,  45  Am,  Dec.  96 191,  212 


CASES   CITED.  497 

Page 

Bryce  v.  Brooks,  26  Wend.  (N.  T.)  374 466.  470 

Brynes  v.  Clark,  57  Wis.  13,  14  N.  W.  815 443 

Bryson,  v.  Lucas,  84  N.  C.  680,  37  Am.  Rep.  634 333 

Buchanan  v.  Findlay,  9  B.  &  O.  738 432,  469 

Buckland  v.  Inhabitants  of  Conway,  16  Mass.  396 120 

Buckley,  Ex  parte,  14  M.  &  W.  469 342 

v.  Humason,  50  Minn.  195,  52  N.  W.  385,  16  L.  R.  A.  423,  36 

Am.  St.  Rep.  637 109,  459 

Budd  v.  Broen,  75  Minn.  316,  77  N.  W.  979 213 

Buell  v.  Ohapin,  99  Mass.  594,  97  Am.  Dec.  58 408 

Bulkeley  v.  Dunbar,  1  Aust.  37 381 

Buller  v.  Harrison,  Cowp.  565 376,  377 

Bunce  v.  Gallagher,  5  Blatchf.  481.  489,  Fed.  Gas.  No.  2.133.  .99,  146 

Bunker  v.  Miles,  30  Me.  431,  1  Am.  Rep.  632 424 

Burchard  v.  Hull,  71  Minn.  430,  74  N.  W.  163 215 

Burden  v.  Sheridan,  36  Iowa,  125,  14  Am.  Rep.  505 421 

Burdett,  The,  9  Pet.  (U.  S.)  682,  689,  9  L.  Ed.  273 256 

Burdick  v.  Garrick,  L.  R.  5  Ch.  233 431,  435 

Burgan  v.  Lyell,  2  Mich.  102,  55  Am.  Dec.  53 Ill 

Burkhard  v.  Mitchell,  16  Colo.  376,  26  Pac.  657 66 

Burks  v.  Hubbard,  G9  Ala.  379 207 

Burley  v.  Kitchell,  20  N.  J.  Law,  305 217 

Burlingame  v.  Brewster,  79  111.  515,  22  Am.  Rep.  177 348 

Burlington  Ins.  Co.  v.  Gibbons,  43  Kan.  15,  22  Pac.  1010,  19  Am. 

St  Rep.  118 219 

Burnap  v.  Marsh,  13  111.  535 380 

Burnham  v.  Fisher,  25  Vt  514 315 

Burns  v.  Lynde,  6  Allen  (Mass.)  305 24 

v.  Poulson,  L.  R.  8  C.  P.  563 271,  272 

Burnside  v.  Railway  Co.,  47  N.  H.  554,  93  Am.  Dec.  474 251 

Burrill  v.  Bank,  2  Mete.  (Mass.)  163,  35  Am.  Dec.  395 31 

Burrough  v.  Skinner,  5  Burr.  2639 377 

Burt  v.  Lathrop,  52  Mich.  106,  17  N.  W.  716 Ill 

v.  Palmer,  5  Esp.  145 248,  251 

Burton  v.  Goodspeed,  69  111.  237 222 

v.  Hughes,  2  Bing.  173,  176 394 

v.  Perry,  146  111.  71,  34  N.  E.  60 261 

v.  Wilkinson,  18  Vt.  185,  46  Am.  Dec.  145 424 

Burwell  v.  Jones,  3  B.  &  Aid.  47 358 

Busoh  v.  Wilcox,  82  Mich.  315,  46  N.  W.  940 287 

82  Mich.  336,  47  N.  W.  328,  21  Am.  St.  Rep.  503 74,  288 

Bush  v.  Cole,  28  N.  Y.  261,  84  Am.  Dec.  343 226 

v.  Insurance  Co.,. 63  N.  "X.  531 219 

TIFF.P.&  A.-32 


498  CASES  CITED. 

Page 

Butcher  v.  Krauth,  14  Bush    (Ky.)  713.. 417 

Butler  v.  Dorman,  68  Mo.  298,  30  Am.  Rep.  795 208,  209 

V.  Knight,  L.  R.  2  Ex.  66 134 

L.  R.  2  Ex.  109 397 

v.  Maples,  9  Wall.  (U.  S.)  766,  19  L.  Ed.  822 

184,  185,  190,  191,  195,  212 

V.  Mill  Co.,  28  Minn.  205,  9  N.  W.  697,  41  Am.  Rep.  277 441 

V.  Railroad  Co.,  143  N.  Y.  417,  38  N.  E.  454,  26  L.  R.  A,  46, 

42  Am.  St.  Rep.  738 , 254 

v.  United  States,  21  Wall.  (U.  S.)  272,  22  L.  Ed.  614 27 

Butterfield  v.  Beall,  3  Ind.  203 334 

Buttrick  v.  Railroad  Co.,  62  N.  H.  413,  13  Am.  St.  Rep.  578 266 

Butts  v.  Phelps,  79  Mo.  302 396,  400 

Byington  v.  Simpson,  134  Mass.  169,  45  Am.  Rep.  314 

234,  235,  364,  365 

Byrd  v.  Hughes,  84  111.  174,  25  Am.  Rep.  442 93 

Byrne  v.  Packing  Co.,  137  Mass.  313 178,  184 

Byrnes  v.  Clark,  57  Wis.  13,  14  N.  W.  815 443 

c 

Cabot  v.  Shaw,  148  Mass.  459,  20  N.  E.  99 377 

Cady  v.  Shepherd,  11  Pick.  (Mass.)  400,  22  Am.  Dec.  379 64 

Cagwin  v.  Ball,  2  111.  App.  70 431 

Cairns  v.  Page,  165  Mass.  552,  43  N.  E.  503 320,  322 

Cairo  &  St  L.  R.  Co.  v.  Mahoney,  82  111.  73,  25  Am.  Rep.  299. ..     44 
Calais  Steamboat  Co.  v.  Van  Pelt,  2  Black,  372,  17  L.  Ed.  282. ..  205 

Calder  v.  Dobell,  L.  R.  6  C.  P.  486 235,  236,  238,  364,  365 

Caldo  v.  Bruncher,  4  C.  &  P.  518 .142 

Caldwell  v.  Walters,  18  Pa.  89,  55  Am.  Dec.  592 102 

Calhoun  v.  Millard,  121  N.  Y.  69,  24  N.  E.  27,  8  L.  R.  A.  248 58 

Camden  Safe  Deposit  &  Trust  Co.  v.  Abbott,  44  N.  J.  Law,  257 

169,  216 

Cameron  v.  Lewis,  56  Miss.  76 421 

Campbell  v.  Boggs,  48  Pa.  524 431,  435 

v.  Cooper,  34  N.  H.  49 329 

v.  Hastings,  29  Ark.  512 217 

V.  Reeves,  3  Head  (Tenn.)  226 118,  128,  428 

V.  Roe,  32  Neb.  345,  49  N.  W.  452 431,  434 

v.  Smith.  71  N.  T.  26,  27  Am.  Rep.  5 24 

v.  Sugar  Co.,  62  Me.  552,  16  Am.  Rep.  503 385 

Cannon  Coal  Co.  v.  Taggart,  1  Colo.  App.  60,  27  Pac.  238 142 

Cantrell  v.  Colwell,  3  Head   (Tenn.)  471 106 


CASES  CITED  499 

Page 

Capen  v.  Insurance  Co.,  25  N.  J.  Law,  67,  44  Am.  Dec.  412 142 

Capital  Fire  Ins.  Ass'n,  In  re,  24  Oh.  D.  408 471 

Capp   v.   Topham,   6   East,   392 458 

Cargill  v.  Brown,  10  Ch.  D.  502 385 

Carleton  v.  Hausler,  20  Tex.  Civ.  App.  275,  49  S.  W.  118 159 

Carney  v.  Barrett,  4  Or.  171 41 

Carpenter  v.  Farnsworth,  106  Mass.  561,  8  Am.  Rep.  360 345 

v.  Insurance  Co.,  135  N.  Y.  298,  31  N.  E.  1015 265 

Carr  v.  Hinchcliffe,  7  D.  &  R.  42 309 

v.  Jackson,  21  L.  J.  Ex.  137 367 

v.  Railroad  Co.,  L.  R.  10  C.  P.  307,  317 34 

Carriger  v.  Whittington,  26  Mo.  311,  72  Am.  Dec.  212 376 

Carroll  v.  State,  63  Md.  551,  3  Atl.  29 301 

v.  Tucker,  3  Misc.  Rep.  397,  21  N.  Y.  Supp.  952 118 

Carson  v.  Smith,  5  Minn.  78  (Gil.  58),  77  Am.  Dec.  539 210,  211 

Carter  v.  Burnham,  31  Ark.  212 217 

y.  Palmer,  8  CL  &  F.  657 421 

y.  Railroad  Co.,  Ill  Ga.  38,  36  S.  E.  308,  50  L.  R.  A.  354 388 

Cartwright  Y.  Wilmerding,  24  N.  Y.  521,  527,  528 321,  322 

Casco  Bank  v.  Keene,  53  Me.  103 51 

Casco  Nat.  Bank  v.  Clark,  139  N.  Y.  307,  34  N.  E.  908,  36  Am. 

St   Rep.    705 341,345 

Case  v.  Bank,  100  U.  S.  446,  454,  25  L,  Ed.  695 221 

v.  Carroll,  35  N.  Y.  385 421 

v.  Jennings,  17  Tex.  661 142 

Case  Mfg.  Co.  v.  Soxman,  138  U.  S.  431,  11  Sup.  Ct.  360,  34  L. 

Ed.    1019 340 

Case  Threshing  Mach.  Co.  v.  McKlnnon,  82  Minn.  75,  84  N.  W. 

646     207 

Cassaboglou  v.  Gibb,  9  Q.  B.  D.  220 407 

Cassady  v.  Seeley,  69  Iowa,  509,  29  N.  W.  432 446 

Oassiday  v.  McKenzie,  4  Watts  &  S.  (Pa.)  282,  39  Am.  Dec.  76. .  145 
Castle  v.  Foundry  Co.,  72  Me.  167 346 

v.  Noyes,  14  N.  Y.  329 457 

Castner  v.  Richardson,  18  Colo.  496,  33  Pac.  163 29 

Caswell  v.  Cross,  120  Mass.  545 280 

Cate  v.  Blodgett,  70  N.  H.  316,  48  Atl.  281 287 

Catlin  v.  Bell,  4  Camp.  183 117,  118 

v.  Smith,  24  Vt  85 398 

Cave  v.  Cave,  15  Ch.  D.  639 263 

Cavin  v.  Gleason,  105  N.  Y.  256,  11  N.  E.  504 326 

Central  Nat  Bank  v.  Insurance  Co.,  104  U.  S.  54,  26  L.  Ed. 
693    324,  325,  429 


500  CASES   CITED. 

Pag* 
Central  R.  Co.  y.  Brewer,  78  Md.  394,  28  Atl.  615,  27  L.  R.  A. 

63  273 

Central  Trust  Co.  v.  Bridges,  6  C.  C.  A.  539,  57  Fed.  753,  764 16 

Ohadsey  v.  McCreery,  27  111.  253 349 

Chadsley  v.  Greene,  24  Conn.  562,  572 248 

Chadwick  v.  Knox,  31  N.  H.  226,  64  Am.  Dec.  329 93 

ChafL'e  v.  Stubbs,  37  La.  Ann.  656 195 

Challiss  v.  Wylie,  35  Kan.  500,  11  Pac.  438 436 

Chambers  v.  Haney,  45  La.  Ann.  447,  12  South.  621 66 

v.  Seay,  73  Ala.  372,  373,  378 136,  154,  448 

v.  Short,  79  Mo.  205 209 

Chandler  v.  Belden,  18  Johns.  (N.  Y.)  157,  9  Am.  Dec.  193 470 

v.  Cbe,  54  N.  H.  561 235,  365 

Chauoine  v.  Fowler,  3  Wend.  (N.  Y.)  173 81 

Chaplin  v.  Freeland,  7  Ind.  App.  676,  34  N.  E.  1007 45 

Chapman  v.  Burt,  77  111.  337 433 

v.  McCrea,  63  Ind.  360 408 

v.  Railroad  Co.,  33  N.  Y.  369,  88  Am.  Dec.  392 272 

v.  Shepherd,  L.  R.  2  C.  P.  228 458 

v.  Twitchell,  37  Me.  59,  58  Am.  Dec.  773 248 

Chappell  v.  McKnight,  108  111.  570 29 

Charlotte,  The,  Lush.  252 65,  72 

Charnley  v.  Winstanley,  5  Bast,  266 148 

Chase  v.  Debolt,  7  111.  371 363 

Chastain  v.  Bowman,  1  Hill  (S.  0.)  270 105 

Chauche  v.  Pare,  21  C.  C.  A.  329,  75  Fed.  283 62 

Chenault  v.  Quisenberry  (Ky.)  57  S.  W.  234 137 

Chesterfield  Mfg.  Co.  v.  Dehon,  5  Pick.  (Mass.)  7,  16  Am.  Dec. 

367  325 

Chicago  Edison  Co.  v.  Fay,  164  111.  323,  45  N.  E.  534 67 

Chicago  Electric  Light  Renting  Co.  v.  Hutchiuson,  25  111.  App. 

476  215 

Chicago,  St  P.,  M.  &  O.  R.  Co.  v.  Belliwith,  28  0.  C.  A.  358, 

83  Fed.  437 261 

Chicago  &  G.  W.  R.  Land  Co.  v.  Peck,  112  111.  408 194 

Chillicothe  Brancn  of  State  Bank  v.  Fox,  3  Blatchf.  431,  Fed.  Cas. 

No.  2,683  351,  352 

Chipley  v.  Atkinson,  23  Fla.  206,  1  South.  934,  11  Am.  St.  Rep. 

367  394 

Chipman  v.  Foster,  119  Mass.  189 345 

Chisholm  v.  Doulton,  22  Q.  B.  D.  734,  741 297 

Ohouteau  v.  Allen,  70  Mo.  290 261 


CASES  CITED.  501 

Page 

Church  y.  Gaslight  Co.,  6  Ad.  &  E.  846 31 

v.  Sterling,  16  Conn.  388 420 

Cincinnati,  I.,  St.  L.  &  C.  R.  Co.  v.  Davis,  126  Ind.  99,  25  N.  E. 

878,  9  L.  R.  A.  503,  44  Am.  &  Eng.  R.  Cas.  461 43 

Citizens'  Bank  Y.  Howell,  8  Md.  530,  63  Am.  Dec.  714 129 

Citizens'  Loan  Fund  &  Savings  Ass'n  v.  Friedley,  123  Ind.  143, 

23  N.  E.  1075,  7  L.  R.  A.  669,  18  Am.  St.  Rep.  320 409 

City  Bank  v.  Perkins,  29  N.  Y.  554,  86  Am.  Dec.  332 220,  221 

City  Nat.  Bank  v.  Dun  (C.  C.)  51  Fed.  160 291 

City  of  Boston  v.  Simmons,  150  Mass.  461,  23  N.  E.  210,  6  L.  R.  A. 

629.  15  Am.  St.  Rep.  230 327,  328 

City  of  Davenport  v.  Insurance  Co.,  17  Iowa,  276.' 190 

City  of  Detroit  v.  Jackson,  1  Doug.  (Mich.)  106 31,  357 

City  of  Duluth  v.  Mallett,  43  Minn.  205,  45  N.  W.  154 380 

City  of  Findlay  v.  Pertz,  13  0.  C.  A.  559,  66  Fed.  427,  437,  29 

.  L.  R.  A.  188 49,  229,  327 

20  C.  C.  A.  662,  74  Fed.  681 66 

City  of  Kansas  v.  Railroad  Co.,  77  Mo.  180 334 

City  of  Providence  v.  Miller,  11  R.  I.  272,  23  Am.  Rep.  453 367 

Claflin  v.  Continental  Jersey  Works,  85  Ga.  27,  11  S.  E.  721 171 

v.  Lenheim,  66  N.  Y.  301 139 

Clark  v.  Dillman,  108  Mich.  625,  66  N.  W.  570 35 

v.  Gilbert,  26  N.  Y.  279,  84  Am.  Dec.  189 452 

v.  Lovering,  37  Minn.  120,  33  N.  W.  776 382 

v.  Moody,  17  Mass.  145 429,  433-435 

v.  Roberts,  26  Mich.  506 400 

v.  Smith,  88  111.  298 209 

v.   Tipping,   9  Beav.   284 428 

v.  Van  Northwick,  1  Pick.  (Mass.)  343 398 

Clarke  v.  Perrier,  2  Freem.  48 65 

v.    Shee,   Cowp.   197 314 

Clarke  Nat.  Bank  v.  Bank,  52  Barb.  592 221 

Clay  v.  Spratt,  7  Bush    (Ky.)  334 69,  87 

Claypool  v.  Gish,  108  Ind.  424,  9  N.  E.  382 432 

Clayton  v.  Merrett,  52  Miss.  353 144 

Cleaver  v.  Insurance  Co.,  65  Mich.  527,  33  N.  W.  660,  8  Am.  St. 

Rep.   908    219 

Cleaves  v.  Hoyt,  33  Me.  341 462 

Cleghorn  v.  Railroad  Co.,  56  N.  Y.  44,  15  Am.  Rep.  375 275 

Clendenning  v.  Hawk,  10  N.  D.  90,  86  N.  W.  114 77 

Clerk  v.  Laurie,  2  H.  &  N.  199 162 

Cleveland  v.  Newsom,  45  Mich.  62,  7  N.  W.  222 254 

Clifford  v.  Burton,  1  Bing.  199 251 


502  CASES  CITED. 

Page 

Clough  v.  Clough,  73  Me.  487,  40  Am.  Rep.  386 22,  108 

Clutterbuck  v.  Ooffin,  3  M.  &  G.  842 367 

Coates  v.  Lewis,  1  Camp.  444 310 

Cobb  v.  Judge,  43  Mich.  289,  5  N.  W.  309 110 

v.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51 236,  239,  361,  363 

Coburn  v.  Lodge,  71  Iowa,  581,  32  N.  W.  513 348 

Cochran  v.  Irlam,  Cowp.  251 223 

Cochrane  v.  Rymill,  4  L.  T.  (N.  S.)  744 380 

Cockran  v.  Irlam,  2  M.  &  S.  301 118,  127,  224 

Cockrill  v.  Kirkpatrick,  9  Mo.   697 432 

Codding  v.  Munson,  52  Neb.  580,  72  N.  W.  846,  66  Am.  St.  Rep. 

524    375 

Codwise  v.  Hacker,  1  Caines  (N.  Y.)  526 65 

Coe  v.  Smith,  4  Ind.  79,  58  Am.  Dec.  618 452 

Coffin  v.  Landis,  46  Pa.  426 139,  448 

Coggs  v.  Bernard,  2  Ld.  R.  909 410,  411 

Cohen  v.  Kittel,  22  Q.  B.  D.  680 404 

Coit  v.  Stewart,  50  N.  Y.  17 436 

Coker  v.  Roper,  125  Mass.  577 397 

Colbert  v.  Shepherd,  89  Va.  401,  16  S.  B.  246 416 

Colburn  v.  Phillips,  13  Gray  (Mass.)  64 387 

Cole  v.  Getzinger,  96  Wis.  559,  71  N.  W.  75 264 

v.  Iron  Co.,  59  Hun,  217,  13  N.  Y.  Supp.  851 417 

v.  Northwestern  Bank,  L.  R.  9  C.  P.  470 320 

L.  R.  10  C.  P.  354,  364,  365 204,  205,  320 

T.  O'Brien,  34  Neb.  68,  51  N.  W.  316,  33  Am.  St.  Rep.  616. .  369 

v.  Pennoyer,  14  111.  158 95 

Coleman  v.  Bank,  53  N.  Y.  388,  394 234,  365 

v.  Pearce,  26  Minn.  123,  1  N.  W.  846 436 

v.  Riches,  16  C.  B.  104 200 

Coles  v.  Bell,  1  Camp.  478 80 

v.  Bristow,  L.  R.  4  Ch.  3 178 

v.  Clark,  3  Gush.  (Mass.)  399 380 

Collen  v.  Gardner,  21  Beav.  540 197 

v.  Wright,  8  El.  &  B.  647 370,  371,  374 

v.  Foster,  2  H.  &  N.  356 9,  281 

Collins  v.  Cooper,  65  Tex.  460 216 

v.  Fowler,  8  Mo.  App.  588 419 

v.  Hopkins,  7  Iowa,  463 146 

v.  Insurance  Co.,  17  Ohio  St.  215,  93  Am.  Dec.  612 339 

v.  Johnson,  16  Ga.  458 351 

V.  Rainey,  42  Ark.  531 422 


CASES  CITED.  503 

Page 

Collins  v.  Ralll,  20  Hun,  246 823 

85   N.   Y.  637 323 

v.  Sullivan,  135  Mass.  461 421 

v.  Tillou,  26  Conn.  368,  68  Am.  Dec.  398 424 

Colmer  v.  Ede,  40- L.  J.  Ch.  185 469 

Colonial  &  U.  S.  Mortg.  Co.  v.  Mortgage  Co.  (O.  C.)  44  Fed.  219  436 

Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061 

32,  33,  35-37 

Colyar  v.  Taylor,  1  Cold.  (Tenn.)  372,  379 413 

Combes'  Case,  9  Coke,  75a * 90,  333 

Combs  v.  Scott,  12  Allen  (Mass.)  493 72,  73 

Comfort  v.  Graham,  87  Iowa,  295,  54  N.  W.  242 375 

Commercial  Bank  v.  Bank,  8  N.  D.  382,  79  N.  W.  859 130 

v.  French,  21  Pick.  (Mass.)  486,  32  Am.  Dec.  280 308,  351 

v.  Norton,  1  Hill  (N.  Y.)  501 118,  119 

Commercial  Nat.  Bank  v.  Armstrong,  148  U.  S.  50,  13  Sup.  Ct 

533,  37  L.  Ed.  363 198 

Commercial  &  Agricultural  Bank  v.  Jones,  18  Tex.  811,  825 54 

Com.  v.  Briant,  142  Mass.  463,  8  N.  E.  338,  56  Am.  Rep.  707. ...  298 

v.  Harnden,  19  Pick.  (Mass.)  482 227 

v.  Holmes,  119  Mass.  195 107 

v.  Joslin,  158  Mass.  482,  33  N.  E.  653,  21  L.  R.  A.  449 299 

v.  Kelley,  140  Mass.  441,  5  N.  E.  834 301 

v.  Morgan,  107  Mass.  199 299 

v.  Nichols,  10  Mete.  (Mass.)  259,  43  Am.  Dec.  432 298,  300 

v.  Wachendorf,  141  Mass.  270,  4  N.  E.  817 299-301 

Conaway  v.  Sweeney,  24  W.  Va.  643 29 

Conkey  v.  Bond,  36  N.  Y.  427 416 

Connett  v.  City  of  Chicago,  114  111.  233,  29  N.  E.  280 68 

Connor  v.  Parsons  (Tex.  Civ.  App.)  30  S.  W.  83 144 

Considerant  v.  Brisbane,  22  N.  Y.  389 388 

Consolidated  Co.  v.  Curtis  (1892)  1  Q.  B.  495,  498 381 

Consolidated  Nat  Bank  v.  Steamship  Co.,  95  Cal.  1,  30  Pac.  96, 

29  Am.  St.  Rep.  85 218 

Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631,  2  L.  R.  A. 

734,  7  Am.   St.  Rep.  769 260-262 

Continental  Ins.  Co.  v.  Insurance  Co.,  2  O.  C.  A.  535,  51  Fed.  884  289 
Continental  Nat.  Bank  v.  Weems,  69  Tex.  489,  6  S.  W.  802,  5 

Am.  St.  Rep.  85 326 

Conwal  v.  Wilson,  1  Ves.  509 65 

Con  way  v.  Lewis,  120  Pa.  215,  13  Atl.  826,  6  Am.  St.  Rep.  700. .  409 

Cook  v.  Fiske,  12  Gray  (Mass.)  491 445 

v.  Gray,  133  Mass.  106 244,  359 


504  CASES  CITED. 

Page 

Cook  r.  Tullis,  16  Wall.  (U.  S.)  332,  21  L.  Ed.  933 77 

18  Wall.  (U.  S.)  332,  21  L.  Ed.  933 60 

Cooke,  Ex  parte,  4  Oh.  D.  123 324,  325 

v.  Bank,  52  N.  Y.  96,  11  Am.  Rep.  667 220,  221 

v.  Eshelby,  12  App.  Cas.  271 ! 310-312 

v.  Wilson,  1  C.  B.  (N.  S.)  153 387 

Cooley  v.  Betts,  24  Wend.  (N.  Y.)  203 432-134 

v.  O'Connor,  12  Wall.  (U.  S.)  391,  20  L.  Ed.  446 114 

Cooper  v.  Mulder,  74  Mich.  374,  41  N.  W.  1084 69 

v.  Railroad  Co.,  6  Hun  (N.  Y.)  *276 43 

V.  Rankin,  5  Bin.  (Pa.)  613 21 

v.  Schwartz,  40  Wis.   54 69 

v.  Willomatt,  1  O.  B.  672 319 

Coore' v.  Calloway,  1  Esp.  115 80 

Cope  v.  Rowlands,  2  M.  &  W.  149 109,  459 

Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198 113,  137,  417 

v.  Stein,  8  T.  R.  199 471 

Copley  v.  Machine  Co.,  2  Woods,  494,  Fed.  Cas.  No.  3,213 278 

Coppin  v.  Walker,  7  Taunt.  237 226 

Coquillard  v.  Suydam,  8  Blackf.  (Ind.)  24 436 

Oorbett  v.  Schumacker,  83  111.  403 ,462 

v.  Underwood,  83  111.  324,  25  Am.  Rep.  392 177 

Corcoran  v.  Cattle  Co.,  151  Mass.  74,  23  N.  E.  727 264 

Corlis  v.  Waterworks,  7  B.  &  C.  314 114 

Cornfoot  v.  Fowkes,  6  M.  &  W.  358 295-297 

Cornwall  v.  Wilson,  1  Ves.  510 66,  86 

Cortland  Wagon  Co.  v.  Lynch,  82  Hun,  173,  31  N.  Y.  Supp.  325. . 

245,  347 

Coster  v.  Murray,  5  Johns.  Ch.  (N.  Y.)  522 434 

Costigan  v.  Railroad  Co.,  2  Denio  (N.  Y.)  609,  43  Am.  Dec.  758. .  450 

Cothay  v.  Fennell,  10  B.  &  C.  671 232,  305 

Cotton  States  Life  Ins.  Co.  v.  Mallard,  57  Ga.  64 462 

Courcier  v.  Ritter,  4  Wash.  C.  C.  (U.  S.)  549,  Fed.  Cas.  No.  3,282  404 
Coursolle  v.  Weyerhauser,  69  Minn.  328,  333,  72  N.  W.  697.... 

59,  96,  97 

Coutourier  v.  Hastie,  8  Ex.  40 , 437 

Covell  v.  Hart,  14  Hun  (N.  Y.)  252 181,  361 

v.  Hill,  6  N.  Y.  374 321 

Coventry  v.  Barton,  17  Johns.  (N.  Y.)  142,  8  Am.  Dec.  376 461 

Covill  v.  Hill,  4  Denio  (N.  Y.)  323 205 

Cowan  v.  Musgrave,  73  Iowa,  384,  35  N.  W.  496 443 

Cowell  v.  Simpson,  16  Ves.  275 ....469,  470,  472 


CASES   CITED.  505 

Page 
Cox  v.  Bruce,  18  Q.  B.  D.  147 200 

v.  Munsey,  6  C.  B.  (N.  S.)  375 329 

v.  Prentice,  3  M.  &  S.  344 376,  377 

v.  Railroad  Co.,  3  Ex.  268 44 

Cragie  v.  Hadley,  99  N.  Y.  131,  1  N.  E.  537,  52  Am.  Rep.  9 261 

Cragin  v.  Lovell,  109  U.  S.  194,  3  Sup.  Ct.  132,  27  L.  Ed.  903. ..  245 

v.  Powell,  128  U.  S.  691,  9  Sup.  Ct.  203,  32  L.  Ed.  566 421 

Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150 

72,  168,  171-173 
Cram  v.  Sickel,  51  Neb.  828,  71  N.  W.  724,  66  Am.  St  Rep.  478    72 

Cranch  v.  White,  1  Bing.  (N.  C.)  414 380 

Crane  v.  Gruenewald,  120  N.  Y.  274,  24  N.  E.  456,  17  Am.  St. 

Rep.  643 .* 35,  202,  213 

Crawford  v.  Russell,  62  Barb.  (N.  Y.)  92 93 

v.  Whittaker,  42  W.  Va.  430,  26  S.  E.  516 209 

Crawley's  Claim,  L.  R.  18  Eq.  182 457 

Craycraft  v.  Selvage,  10  Bush,  696 199 

Cremer  v.  Wimmer,  40  Minn.  511,  42  N.  W.  467 388 

Creson  v.  Ward,  66  Ark.  209,  49  S.  W.  827 48 

Cribben  v.  Deal,  21  Or.  211,  27  Pac.  1046,  28  Am.  St  Rep.  746. .     25 

Crocker  v.  Crane,  21  Wend.  (N.  Y.)  211,  34  Am.  Dec.  228 114 

Cromwell  v.  Benjamin,  41  Barb.  (N.  Y.)  558 40,  41 

Crooker  v.  Hutchinson,  1  Vt.  73 406 

Cropper  v.  Cook,  L.  R.  3  C.  P.  199 178 

L.  R.  8  C.  P.  199 457 

Crosby  v.  Hill,  39  Ohio  St.  100 209,  313 

Cross  v.  Williams,  7  H.  &  N.  675 Ill 

Crothers  v.  Lee,  29  Ala.  337 437 

Crouse  v.  Insurance  Co.,  79  Mich.  249,  44  N.  W.  496 220 

Grout  v.  De  Wolf,  1  R.  I.  393 54 

Crowfoot  v.  Gurney,  9  Bing.  372 158,  163,  164,  370 

Crowley  v.  Mining  Co.,  55  Cal.  273 31 

Croy  v.  Busenbark,  72  Ind.  48 22 

Crump  v.  Ingersoll,  44  Minn.  84,  46  N.  W.  141 424 

T.  Mining  Co.,  7  Grat.  (Va.)  352,  56  Am.  Dec.  116 303 

Cruzan  v.  Smith,  41  Ind.  298 . ...  190 

Cullen,  In  re,  27  Beav.  51 469 

v.  Thompson's  Trustees,  4  Macq.  424,  432 381 

Cummings  v.  Sargent,  9  Mete.  (Mass.)  172 217 

Cummins  v.  Heald,  24  Kan.  600,  36  Am.  Rep.  264 131 

Cunningham,  In  re,  36  Ch.  Div.  532 202 

v.  Reardon,  98  Mass.  538,  96  Am.  Dec.  670 41 

Curnane  v.  Scheidel,  70  Oonn.  13,  38  Atl.  875 68 


506  CASES  CITED. 

Page 
Curran  v.  Galen,  152  N.  Y.  33,  46  N.  B.  297,  37  L.  R.  A.  802,  57 

Am.    St.    Rep.    496 394 

Curry  v.  Hale,  15  W.  Va.  875 69 

Curtis  v.  Barclay,  7  D.  &  R.  539,  5  B.  &  0.  141 175,  456 

v.  Blair,  26  Miss.  309,  59  Am.  Dec.  257 21 

v.  Williamson,  L.  R.  10  Q.  B.  57 238,  239 

Cushman  v.  Loker,  2  Mass.  106 65 

Cutter  v.  Demmon,  111  Mass.  474 423 

v.  Gillette,  163  Mass.  95,  39  N.  E.  1011 449,  450 

v.  Powell,  6  T.  R.  320 453 

D 

Dadswell  v.  Jacobs,  34  Oh.  D.  278 428 

Dalby  v.  Stearns,  132  Mass.  230 401 

Dale  v.  Hepburn,  111  Misc.  Rep.  286,  32  N.  Y.  Supp.  269 132 

Daly  v.  Bank,  56  Mo.  94,  17  Am.  Rep.  663 129 

Damon  v.  Inhabitants,  2  Pick.  (Mass.)  345 115 

Dana  v.  Trust  Co.,  99  Wis.  663,  75  N.  W.  429 417 

Danby  v.  Coutts,  29  Ch.  D.  500 133,  170 

D'Angiban,  In  re,  L.  R.  15  Ch.  D.  228 107 

Daniel  v.  Adams,  Ambl.  495 227 

Daniels,  In  re,  6  Biss.  (U.  S.)  405,  Fed.  Cas.  No.  3,566 149 

D'Arcy  v.  Lyle,  5  Bin.  (Pa.)  441 457 

Darling  v.  Stan  wood,  14  Allen  (Mass.)  504 121,  127 

Darr  v.  Darr,  59  Iowa,  81,  12  N.  W.  765 144 

Darrow  v.  Produce  Co.  (C.  C.)  57  Fed.  463 233,  304,  305 

v.  St.  George,  8  Colo.  592,  9  Pac.  791 154 

Dartnall  v.  Howard,  4  B.  &  C.  345 402 

Daughtrey  v.  Knolle,  44  Tex.  450 336 

Davenport  v.  Riley,  2  McOord  (S.  C.)  198 362 

v.  Sleight,  19  N.  O.  381,  31  Am.  Dec.  420 24 

Davenport  Plow  Co.  v.  Lamp,  80  Iowa,  722,  45  N.  W.  1049,  20 

Am.  St.  Rep.  442 326 

Davey  v.  Jones,  42  N.  J.  Law,  28,  36  Am.  Rep.  505 131 

Davidson  v.  Porter,  57  111.  300 195 

Davies  v.  Lyon,  36  Minn.  427,  31  N.  W.  688 212 

Davila,  In  re,  22  Oh.  D.  593 256 

Davis  v.  Artingstall,  49  L.  J.  Ch.  609 381 

v.  Bank,  46  Vt.  728 144 

v.  England,  141  Mass.  587,  6  N.  E.  731 339,  348 

v.  Hamlin,  108  111.  39,  48  Am.  Rep.  541 421 

v.  Kobe,  36  Minn.  214,  30  N.  W.  662,  1  Am.  St.  Rep.  663 404 


CASES  CITED.  507 

Pace 
Davis  v.  Lane,  ION.  H.  156 99,  100,  146,  147 

v.  Waterman,  10  Vt.  526,  33  Am.  Dec.  216 214 

Davison  v.  Donaldson,  9  Q.  B.  Div.  623 239,  242 

v.  Holden,  55  Conn.  103,  10  Atl.  515,  3  Am.  St.  Rep.  40 112 

Davol  v.  Quimby,  11  Allen  (Mass.)  208 137 

Davoue  v.  Fanning,  2  Johns.  Ch.  (N.  Y.)  252 416 

Dawson  v.  Lawley,  4  Esp.  65 176 

Day  v.   Holmes,   103  Mass.  306 178 

v.  Southwell,  3  Wis.  657 424 

Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45 

184,  186,  190,  195,  197,  206,  207,  222-224 
Dayton  v.  Hooglund,  39  Ohio  St.  671 207 

v.  Warne.  43  N.  J.  Law,  659 333 

Deacon  v.  Greenfield,  141  Pa.  467,  21  Atl.  650 67 

Deakin  v.  Underwood,  37  Minn.  98,  33  N.  W.  318,  5  Am.  St  Rep. 

827    113,  333 

Dean  v.  Brock,  11  Ind.  App.  507,  38  N.  E.  829 384 

v.  King,  22  Ohio   St   118 200 

Dearborn  v.  Bowman,  3  Mete.  (Mass.)  155 444 

Debenhara  v.  Mellon,  5  Q.  B.  D.  394 37 

De  Bussche  v.  Alt,  8  Ch.  D.  286 

120,  121,  126-128,  417,  423,  427,  428 

De  Comas  v.  Prost,  3  Moore,  P.  C.  (N.  S.)  158 162,  404 

Decuir  v.  Lejeune,  15  La.  Ann.  569 49 

Deering  v.  Thorn.  29  Minn.  120,  12  N.  W.  350 360 

Deering  &  Co.  v.  Bank,  81  Iowa,  222,  46  N.  W.  1117 65 

v.  Kelso,  74  Minn.  41,  76  N.  W.  792,  73  Am.  St.  Rep.  324 202 

Delafield  v.  Illinois,  26  Wend.  (N.  Y.)  192 172,  201 

Delaney  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456.  .383,  384 

Demarest  v.  Barbadoes  Tp.,  40  N.  J.  Law,  604 315 

Deming  v.  Chase,  48  Vt.  382 208 

Deinpsey  v.  Chambers,  154  Mass.  330,  28  N.  E.  279,  13  L.  R.  A. 

219,  26  Am.  St  Rep.  249 47,  48,  268 

Denew  v.  Daverell,  3  Camp.  451 455 

Dennis  v.  Clark,  2  Gush.  (Mass.)  347,  352,  48  Am.  Dec.  671 41 

Denny  v.  Manhattan  Co.,  2  Denio  (N.  Y.)  115 383 

5  Denio  (N.  Y.)  639 383 

v.  Wheelwright,  60  Miss.  733*. 457 

Denson  v.  Thurmond,  11  Ark.  586..... 157 

Derby  v.  Johnson,   21  Vt  17 449 

De  Remer  v.  Brown,  156  N.  Y.  410,  59  N.  E.  129 363 

165  N.  Y.  410,  59  N.  E.  129 360 

Derocher  v.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286 107 


508  CASES   CITED. 

Page 

Deny  v.  Peek,  14  App.  Oa8.  337 296 

Deslands  v.  Gregory,  30  L.  J.  Q.  B.  36 359 

Desmond  v.  Stebbins,  140  Mass.  339,  5  N.  B.  150 445,  446 

Despatch  Line  of  Packets  v.  Manfg.  Co.,  12  N.  H.  205,  37  Am. 

Dec.  203  58,  63,  217 

De  Tastett  v.  Crousillat,  2  Wash.  0.  C.  (U.  S.)  132,  Fed.  Cas.  No. 

3,828    173,  399,  404,  408 

•Devall  v.  Burbridge,  4  Watts  &  S.  (Pa.)  305 420 

Devinney  v.  Reynolds,  1  Watts  &  S.  (Pa.)  328 333 

Deweese  v.  Muff,  57  Neb.  17,  77  N.  W.  361,  42  L,  R.  A.  789,  73 

Am.   St.   Rep.  488 145 

Dewey  v.  School  Dist,  43  Mich.  480,  5  N.  W.  646,  38  Am.  Rep. 

206     453 

Dewing,  v.  Hutton,  40  W.  Va.  521,  21  S.  E.  780... 473 

48  W.  Va.  576,  37  S.  E.  670 463 

De  Witt  v.  Walton,  9  N.  Y.  571. 342 

Dexter  v.  Berge,  76  Minn.  216,  78  N.  W.  1111 213 

v.  Hall,  15  Wall.  (U.  S.)  925,  21  L.  Ed.  73 95,  99 

Dibbins  v.  Dibbins  (1896)  2  Ch.  348 83,  85 

Dicas  v.  Stockley,  7  C.  &  P.  587 472 

Dick  v.  Page,  17  Mo.  234,  57  Am.  Dec.  267 145 

Dickerman  v.  Ashton,  21  Minn.  538 23 

Dickinson  v.  Bank,  129  Mass.  279,  37  Am.  Rep.  351 158 

v.  Litwall,  4  Oamp.  279 133 

v.  Naul,  4  B.  &  Ad.  638 384) 

Dickson's  Adm'r  v.  Luman,  93  Ky.  614.  20  S.  W.  1038 28 

Diefenback  v.  Stark,  56  Wis.  462,  14  N.  W.  621,  43  Am.  Rep. 

719 45:5 

Dieringer  v.  Meyer,  42  Wis.  311,  24  Am.  Rep.  415 142 

Dillaway  v.  Butler,  135  Mass.  479 263 

Dillman  v.  Hastings,  144  U.  S.  136,  12  Sup.  Ct.  663,  36  L.  Ed. 

378    425 

Dingle  v.  Hare,  7  0.  B.  (N.  S.)  145 175,  178,  207,  223 

Dingley  v.  McDonald,  124  Cal.  682,  57  Pac.  574 81 

Diplock   v.  Blackburn,   3  Camp.   43 423 

Disbrow  v.  Secor,  58  Conn.  35,  18  Atl.  981 416 

Distilled  Spirits  Case,  The,  11  Wall.  (U.  S.)  356,  20  L.  Ed.  167... 

258,  261,  262 

Diversy  v.  Kellogg,  44  111.  114,  92  Am.  Dec.  154 210 

Dixon,  Ex  parte,  4  Ch.  D.  133 222,  224,  237,  309,  312 

19  Ch.   D.  86 425 

v.  Ewart,  3  Meriv.  322 149 

V.  Stansfield,  10  C.  B.  398 468,  469 


CASES  CITED.  509 

Page 

D.  M.  Osborn  Co.  v.  Jordan,  52  Neb.  465,  72  N.  W.  479 68 

Dobbin  v.  Cordiner,  41  Minn.  165,  42  N.  W.  870,  4  L.  R.  A.  333, 

16  Am.  St.  Rep.  683 102 

Dodd  v.  Farlow,  11  Allen  (Mass.)  426,  87  Am.  Dec.  726 208,  225 

v.  Wakeman,  26  N.  J.  Eq.  484 » 423 

Dodge  v.  Hopkins,  14  Wis.  630 82 

v.  Perkins,  9  Pick.  (Mass.)  368,  387 429,  434,  435 

v.  Tileston,  12  Pick.  (Mass.)  328 455 

Dodsley  v.  Varley,  4  P.  &  D.  448 36 

Doe  v.  Goldwin,  2  Q.  B.  143 80 

v.  Roberts,  16  M.  &  W.  778 59,  94 

v.  Thompson,  22  N.  H.  217 387 

v.  Walters,  10  B.  &  C.  626 80 

Dqnnelly  v.  Popham,  1  Taunt.  1 77 

Donovan  v.  Campion,  29  C.  A.  30,  85  Fed.  71 230 

Dorchester  &  Milton  Bank  v.  Bank,  1  Cush.  (Mass.)  177....  120,  129 

Dord  v.  Bonnaffee,  6  La.  Ann.  563,  54  Am.  Dec.  573 50 

Dorrance  v.  Scott,  3  Whart.  (Pa.)  309,  31  Am.  Dec.  509 101 

Doubleday  v.  Kress,  50  N.  Y.  410,  10  Am.  Rep.  502 212 

Douglass  v.  Leland,  1  Wend.  (N.  Y.)  490 397,  398 

Dove  v.  Martin,  23  Miss.  588 81 

Dowden  v.  Cryder,  55  N.  J.  Law,  329,  26  Atl.  941 210 

Downes  v.  Bank,  6  Hill  (N.  Y.)  297 431 

Downing  v.  Rugar,  21  Wend.  (N.  Y.)  178,  34  Am.  Dec.  223 114 

Dozier  v.  Freeman,  47  Miss.  647 195 

Drain  v.  Doggett,  41  Iowa,  682 214 

Drakeley  v.  Gregg,  8  Wall.  (TL  S.)  242,  267,  19  L.  Ed.  409 47 

Dramburg  v.  Pollizer,  28  L.  T.  470 365 

Draper  v.  Heating  Co.,  5  Allen  (Mass.)  338 346 

Dresser  v.  Norwood,  17  C.  B.  (N.  S.)  466 260,  310 

Drew  v.  Nunn,  L.  R.  4.  Q.  B.  D.  661 99-101,  146,  147,  372 

Drink  water  v.  Goodwin,  Cowp.  251 223,  389,  466 

Drummond  v.  Humphreys,  39  Me.  347 457,  461 

v.  Wood,  2  Caines  (N.  Y.)  310 403 

Drury  v.  Foster,  2  Wall.  (U.  S.)  24,  17  L.  Ed.  780 25 

Dubois  v.  Perkins,  21  Or.  189,  27  Pac.  1044 310 

Duckworth  v.  Orr,  126  N.  C.  674,  36  S.  E.  150 144 

Duclos  v.  Cunningham,  102  N.  Y.  678.  6  N.  E.  790 446 

Duffield  v.  Michaels  (C.  O.)  97  Fed.  825 142 

Dufresne  v.  Hutchinson,  3  Taunt.  117 400,  401 

Dugan  v.  Lyman  (N.  J.  Sup.)  23  Atl.  657 71,  72 

Dun  v.  Bank,  7  O.  C.  A.  152,  58  Fed.  174,  23  L.  R.  A.  687 

132,  290,  291 


510  CASES  CITED. 

Page 

Duncan  v.  Beeson,  L.  R.  8  Ex.  242 458 

v.  Hill,  .L.  R.  8  Ex.  242 458 

v.  Hodges,  4  McCord  (S.  C.)  239,  17  Am.  Dec.  734 25 

v.  Niles,  32  111.  532,  83  Am.  Dec.  293 369,  370 

v.  Spear,  11  Wend.  (N.  Y.)  56 424 

Dung  v.  Parker,  52  N.  Y.  494 369,  370,  374 

Dunlop  v.  Lambert,  6  Cl.  &  P.  600 387 

Dunn  v.  Johnson,  115  N.  C.  249,  20  S.  E.  390 436 

v.  Railroad  Co.,  43  Conn.  434 65 

Dunne  v.  English,  L.  R.  18  Eq.  524 418 

Durant  v.  Roberts  (1900)  1  Q.  B.  629 55 

Durbrow  v.  Eppens,  65  N.  J.  Law,  10,  46  Atl.  582 163 

Durgin  v.  Somers,  117  Mass.  55 Ill 

Durkee  v.  Railroad  Co.,  69  Cal.  533,  11  Pac.  130,  58  Am.  Rep.  562  2«B 

Durrell  v.  Evans,  1  H.  &  C.  174 175 

30  L.  J.  Ex.  354,  6  H.  &  N.  660 108 

Duryea  v.  Vosburgh,  138  N.  Y.  621,  33  N.  E.  932 424 

Dusar  v.  Perit,  4  Bin.  (Pa.)  361 402 

Dusenbury  v.  Ellis,  3  Johns.  Cas.  (N.  Y.)  70,  2  Am.  Dec.  144...  369 

Dutch  v.  Boyd,  81  Ind.  146 351 

Dutton  v.  Willner,  52  N.  Y.  312 423 

Duval  v.  Wellman,  124  N.  Y.  156,  26  N.  E.  343 93 

Duvall  v.  Graves,  7  Bush    (Ky.)  461 95 

Dyer  v.  Duffy,  39  W.  Va.  148,  19  S.  E.  540,  24  L.  R.  A.  339 210 

v.  Pearson,  3  B.  &  C.  38 205 

E 

Eadie  v.  Ashbaugh,  44  Iowa,  519 74 

Eagle  Bank  v.  Smith,  5  Conn.  71,  13  Am.  Dec.  37 32 

Earle  v.  Earle,  11  Allen  (Mass.)  1 • 253 

Earle's  Adm'rs  v.  Earle,  20  N.  J.  Law,  347 103 

Earl  Fruit  Co.  v.  Warehouse  Co.,  60  Minn.  351,  62  N.  W.  439...  458 

Earp  v.  Cummins,  54  Pa.  394,  93  Am.  Dec.  718 446 

Easland  v.  Burchell,  3  Q.  B.  D.  432,  436 40 

East  v.  King,  77  Miss.  738,  27  South.  608 „     40 

Eastern  Counties  R.  Co.  v.  Brown,  6  Ex.  314 48 

East  Haddam  Bank  v.  Scovil,  12  Conn.  303 129 

East  London  Water  W.  Co.  v.  Bailey,  4  Bing.  283 30 

East  Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea  (Tenn.)  397....     30 

Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716 98 

v.  Welton,  32  N.  H.  352. 429,  434 

E.  Bement  &  Sons  v.  Armstrong  (Tenn.  Ch.  App.)  39  S.  W.  899    69 


CASES   CITED.  511 

Page 
Eberts  v.  Selover,  44  Mich.  519,  7  N.  W.  225,  38  Am.  Rep.  278. .     61 

Eckart  v.  Roehm,  43  Minn.  27,  45  N.  W.  443 212 

Eddy  v.  Livingston,  35  Mo.  487,  88  Am.  Dec.  122 411 

Edgar  v.  Joseph  Breck  &  Sons  Corp.,  172  Mass.  581,  52  N.  E. 

1083 68 

Edgerton  v.  Thomas,  9  N.  Y.  40 106 

Edmunds  v.  Bushell,  L.  R.  1  Q.  B.  97 184,  216,  218,  237 

Edwards,  Ex  parte,  8  Q.  B.  D.  262 475 

13  Q.  B.  D.  747 378 

v.  Gildemeister.  61  Kan.  141,  59  Pac.  259 236 

V.  Golding,  20  Vt.  30 304 

v.  Hodding,  1  Marsh.  377 377 

v.  Levy,  2  F.  &  F.  94 142 

v.  Myrick,  2  Hare,  60 418 

Eggleston  v.  Boardman,  37  Mich.  14 442 

v.  Wagner,  46  Mich.  610,  10  N.  W.  37 22 

Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188.  .64,  66,  73,  74 

Eichbaum  v.  Irons,  6  Watts  &  S.  (Pa.)  67,  40  Am.  Dec.  540 112 

Elbinger  Actien-Gesellschaft  v.  Claye,  L.  R.  8  Q.  B.  313 365,  366 

Elderton  v.  Emmens,  6  C.  B.  178 450 

Eldridge  v.  Holway,  18  111.  445 ;  119 

Eley  v.  Ass'n,  1  Ex.  D.  88 20 

Elias  v.  Ass'n,  46  S.  C.  188,  24  S.  E.  102 99 

Elkhart  County  Lodge  v.  Crary,  98  Ind.  238,  49  Am.  Rep.  746. . 

92,  459 

Elkins  v.  Railroad  Co.,  19  N.  H.  337,  51  Am.  Dec.  184 304 

Elledge  v.  Railroad  Co.,  100  Cal.  282,  34  Pac.  720,  38  Am.  St. 

Rep.  290 , 254 

Elliot  v.  Bradley,  23  Vt.  217 467,  468 

v.  Ince,  7  DeG.  M.  &  G.  475 98 

Elliott  v.  Bodine,  59  N.  J.  Law,  567,  36  Atl.  1038 238 

v.  Stocks,  67  Ala.   336 21 

v.  Swartwout,  10  Pet.  (TL  S.)  137,  9  L.  Ed.  373 378 

Bills  v.  Goulton  (1893)  1  Q.  B.  350 378 

v.  McNaughton,  76  Mich.  237,  42  N.  W.  1113,  15  Am.  St  Rep. 

308  384 

Elsee  v.  Gateward,  5  T.  R.  173 18 

Elwell  v.  Chamberlin,  31  N,  Y.  611 82 

v.  Coon  (N.  J.  Ch.)  46  Atl.  580 149 

v.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126 244,  334 

Ely  v.  Hanford,  65  111.  267 424 

v.  Positive  Government  L.  Ass'n  Co.,  1  Ex.  D.  88 28 


512  CASES  CITED. 

Page 

Emerson  v.  Blonden,  1  Esp.  142.. , 106 

v.  Hat  Co.,  12  Mass.  237,  7  Am.  Dec.  66 117,  118,  121 

v.  Manfg  Co.,  12  Mass.  237,  7  Am.  Dec.  66 20,  342 

Emmens  v.  Elderton,  13  C.  B.  495 141 

Emmerson  v.  Heelis,  2  Taunt.  38 29 

Empire  State  Ins.  Co.  v.  Insurance  Co.,  138  N.  Y.  446,  34  N.  E. 

200 419 

Empress  Engineering  Co.,  In  re,  16  Ch.  D.  125 56 

Eneu  v.  Clark,  2  Pa.  234,  44  Am.  Dec.  191 148 

English  v.  Devarro,  5  Blackf.  (Ind.)  588 436 

Enright  v.  Beaumond,  68  Vt.  249,  35  Atl.  57 137 

Enthwistle  v.  Dent,  1  Ex.  812 172 

Episcopal  Church  v.  Wiley,  2  Hill,  Eq.  (S.  O.)  584,  30  Am.  Dec. 

386    236 

Equitable  Securities  Co.  v.  Sheppard,  78  Miss.  217,  28  South.  217  261 
Ermentrout  v.  Insurance  Co.,  63  Minn.  305,  310,  65  N.  W.  635, 

30  L.  R.  A.  346,  56  Am.  St.  Rep.  481 218,  219 

Esdaile  v.  La  Nanse,  1  Y.  &  C.  394 171 

Eufaula  Grocery  Co.  v.  Bank,  118  Ala.  408,  24  South.  389 377 

Euneau  v.  Rieger,  105  Mo.  659,  16  S.  W.  854 417 

Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep.  400 272 

v.  Fearne,  16  Ala.  689,  50  Am.  Dec.  197 157 

v.  Potter,  2  Gall.  12,  Fed.  Gas.  No.  4,569 223 

v.  Wain,  71  Pac.  69 178 

Evansville  &  R.  R.  Co.  v.  Freeland,  4  Ind.  App.  207,  30  N.  E. 

803     43 

Everett  v.  Coffin,  6  Wend.  (N.  Y.)  603,  22  Am.  Dec.  551 380 

Everhart  v.  Searle,  71  Pa.  256 ,....  419 

Ever  son  v.  Powers,  89  N.  Y.  527,  42  Am.  Rep.  319 449 

Eviston  v.  Cramer,  57  Wis.  570,  15  N.  W.  760 275 

Evrit  v.  Bancroft,  22  Ohio  St.  172 391 

Exchange  Nat  Bank  v.  Bank,  112  U.  S.  276,  5  Sup.  Ct.  141,  28  L. 
Ed.  722 128,  130,  131 

F 

Fairbanks  V.  Snow,  145  Mass.  153,  13  N.  R.  596,  1  Am.  St.  Rep. 

446    96 

Fail-brother  v.  Simmons,  5  B.  &  Aid.  333 108 

Fairchild  v.  Cunningham,  84  Minn.  521,  88  N.  W.  15 452 

v.  McMahon,  139  N.  Y.  290,  34  N.  E.  779,  36  Am.  St.  Rep. 

701    82 

Fairfield  v.  Adams,  16  Pick.  (Mass.)  381 351 


CASES   CITED.  513 

Page 

Fairfleld  Sav.  Bank  r.  Chase,  72  Me.  226,  39  Am.  Rep.  319 260 

Fairlie  v.  Fenton,  L.  R.  5  Ex.  169 302,  357,  389 

v.  Hastings,  10  Ves.  Jr.   123 248 

Fairly  v.  Nasb,  70  Miss.  193,  12  South.  149 ~ 218 

Fairthorne  v.  Blaquire,  6  M.  &  S.  73 101 

Fales  T.  Mayberry,  2  Gall.  (U.  S.)  560,  Fed.  Gas.  No.  4,622 425 

Falk  v.  Fletcher,  18  C.  B.  (N.  S.)  403 476 

v.  Moebs.  127  U.  S.  597,  8  Sup.  Ct  1319,  32  L.  Ed.  266.  .350,  352 

Fargo  v.  Cravens,  9  S.  D.  646.  70  N.  W.  1053 117 

Farmer  v.  Robinson,  2  Camp.  339,  note 136 

Farmers'  Bank  v.  Sprigg,  11  Md.  389 228 

Farmers'  Co-op.  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26  N.  E. 

110,  12  L.  R.  A.  346,  21  Am.  St.  Rep.  846 370,  374 

Farmers'   Loan   &  Trust  Co.   v.   Railroad   Co.   (C.   C.)  83  Fed. 

870    79,  81 

v.  Wilson,  139  N.  Y.  284,  34  X.   E.  784,  36  Am.  St.  Rep. 

696     145,  154 

Farmers'  &  Citizens'  Bank  v.  Payne,  25  Conn.  444,  68  Am.  Dec. 

362   266 

Farmers'  &  Mechanics'  Bank  v.  Bank,  14  N.  Y.  623 221 

16  N.  Y.  125,  144,  145,  69  Am.  Dec.  678 

20,  32,  33,  36,  199,  221 

v.  Butchers'  &  Drovers'  Bank,  14  N.  Y.  623 200 

16  N.  Y.  125,  69  Am.  Dec.  678 200 

Farmers'  &  Mechanics'  Nat.  Bank  v.  King,  57  Pa.  202,  98  Am. 

Dec.  215   325 

v.  Logan,  74  N.  Y.  568 476 

Farmers'  &  Merchants'  Bank  v.  Bank,  49  Neb.  379,  68  N.  W. 

488   67 

Farmington  Sav.  Bank  v.  Buzzell,  61  N.  H.  612 216 

Faruam  v.  Brooks,  9  Pick.  (Mass.)  212 418 

Farnham   v.   Thompson,   34   Minn.   330,   26   N.   W.   9,   57   Am. 

Rep.    59    170 

Farnsworth  v.  Hemmer,  1  Allen  (Maes.)  494,  79  Am.  Dec.  756 .... 

416,  419 

Farr  v.  John,  23  Iowa,  286,  92  Am.  Dec.  426 226 

Farrand  v.  Hurlbut,  7  Minn.  477  (Gil.  383) 401 

Farrar  v.  Lacy,  21  Ch.  D.  42 398 

v.  Lee,  10  App.  Div.  130,  41  N.  Y.  Supp.  672 244 

Farrel  Foundry  v.  Dart,  26  Conn.  376 266 

Farrer  v.  Lacy,  25  Ch.  D.  636 227 

Farrington  v.  Railroad  Co.,  150  Mass.  406,  23  N.  E.  109,  5  L. 

R.  A.  849,  15  Am.  St  Rep.  222 293 

TIFF.P.&  A.-33 


514  CASES   CITED. 

Page 

Farrow  v.  Wilson,  L.  R.  4  C.  P.  744 , 452 

Farwell  v.  Railroad  Corp.,  4  Mete.  (Mass.)  49,  38  Am.  Dec.  339. .  27-". 

Fatman  v.  Leet,  41  Ind.  133 184 

Fay  v.  Winchester,  4  Mete.  (Mass.)  513 169 

Feild  v.  Farrington,  10  Wall.  (U.  S.)  141,  19  L.  Ed.  923 404 

Feise  v.  Wray,  3  East,  93 47<i 

Felker  v.  Emerson,  16  Vt.  653,  42  Am.  Dec.  532 10(i 

Fellows  v.  Com'rs,  36  Barb.  (N.  Y.)  655 5.~i 

y.  Northrup,  39  N.  Y.  117 118 

v.  Steamboat  Co.,  38  Conn.  197 138 

Felt  v.  School  Dist,  24  Vt.   297 40(5 

Feltus  v.  Swan,  62  Miss.  415 383,  384 

Fenn  v.  Dickey,  178  Pa.  258,  35  Atl.  1108 62 

v.  Harrison,  3  T.  R.  757 190 

Fenner  v.  Lewis,  10  Johns.  (N.  Y.)  38 10(i 

Feuton  v.  Clark,  11  Vt.  557 452 

Feret  v.  Hill,   15  C.  B.  207 29C. 

Ferrand  v.  Bishoffsheim,  4  0.  B.  (N.  S.)  710 312 

Ferris  v.  Paris,  10  Johns.  (N.  Y.)  285 432-134 

Ferry  v.  Moore,  18  111.  App.  135 23!> 

Fetrow  v.  Wiseman,  40  Ind.  148,  155 95 

Field  v.  Stagg,  52  Mo.  534,  14  Am.  Rep.  435 25 

Fielding  v.  Kymer,  2  B.  &  B.  639 22H 

Fifth  Ave.  Bank  v.  Railroad  Co.,  137  N.  Y.  231.  33  N.  E.  378, 

19  L.  R.  A.  331,  33  Am.  St.  Rep.  712 29:! 

Fifth  Nat.  Bank  v.  Ashworth,  123  Pa.  212,  16  Atl.  596,  2  L.  R. 

A.    491    398 

Finn  v.  Railroad  Corp.,  112  Mass.  524,  17  Am.  Rep.  128 387 

Finnegan  v.  Lucy,  157  Mass.  439,  32  N.  E.  656 91 

Finney  v.  Insurance  Co.,  5  Mete.  (Mass.)  192,  38  Am.  Dec.  397. ...     83 

Firbank's  Ex'rs  v.  Humphreys,  18  Q.  B.  D.  54,  60 371,  37.°, 

Firestone  v.  Firestone,  49  Ala.  128 420 

First  Nat  Bank  v.  Babbidge,  160  Mass.  563,  36  N.  E.  462 264 

v.  Bank,  56  Neb.  149,  76  N.  W.  430 35 

77  N.  Y.  320,  33  Am.  Rep.  618 408 

V.  Bissell  (C.  C.)  2McCrary,  73,4  Fed.  694 142 

v.  Butler,  41  Ohio  St.  519,  52  Am.  Rep.  94 131 

T.  Free,  67  Iowa,  11,  24  N.  W.  566 15 

V.  Hall,  44  N.  Y.  395,  4  Am.  Rep.  698 308,  351 

v.  Kilbourne,  127  111.  573,  20  N.  E.  681,  11  Am.  St.  Rep.  174. .  429 

V.  Loyhed.  28  Minn.  396,  10  N.  W.  421 341 

V.  Shaw,  61  N.  Y.  283 321-323 


CASES   CITED.  515 

Page 

First  Nat.  Bank  T.  Sprague,  34  Neb.  318,  51  N.  W.  846,  15  L.  R. 

A.  498,  33  Am.  St.  Rep.  644 129 

y.  Town  of  Alt.  Tabor,  52  Vt.  87,  36  Am.  Rep.  734 115 

•       v.  Wallis,  80  Hun,  435,  30  N.  Y.  Supp.  83 346 

150  N.  Y.  455,  44  N.  E.  1038 341,  346 

First  Unitarian  Soe.  v.  Faulkner,  91  U.  S.  415,  23  L.  Ed.  283 256 

Fish  v.  Kempton,  7  C.  B.  687 310 

v.  Leser,  69  111.  394 419 

v.  Seeberger,  154  111.  30,  39  N.  E.  982 45o 

Fisher  v.  Bush,  133  Ind.  315,  32  N.  E.  924 417 

v.  Campbell,  9  Port.  (Ala.)  210 33 

v.  Drewett,  48  L.  J.  Ex.  32 ...  445 

v.  Dynes,  62  Ind.  348 455 

v.  Smith,  4  App.  Cas.  1 469,  474,  475 

Fisher's  Appeal,  34  Pa.  29 418 

Fisk  v.  Light  Co.,  3  Colo.  App.  319,  33  Pac.  70 217 

Fiske  v.  Eldridge,  12  Gray  (Mass.)  474 348 

v.    Holmes,   41    Me.   441 62,  81 

Fitzhugh  v.  Wiman,  9  N.  Y.  559 394 

Fitzmaurice  v.  Bagley,  6  El.  &  B.  8G8 62 

Fitzsimmons  v.  Joslin,  21  Vt.  129,  52  Am.  Dec.  46 296 

Flanagan  v.  Brown,   70  Gal.  254,  11   Pac.  706 154 

Flanders  v.  Putney,  58  N.  H.  358 206 

Flauigan  v.  Crull,  53  111.  352 227 

Flatt  v.  Osborne,  33  Minn.  98,  22  N.  W.  440 208 

Fleckner  v.  Bank,  8  Wheat.  338,  360,  363,  5  L.  Ed.  631 

58,  82,  220,  221 

Fleet  v.  Murton,  L.  R.  7  Q.  B.  126 360,  361 

Fleming  v.  Insurance  Co.,  42  Wis.  616 219 

Flemyng  v.  Hector,  2  M.  &  W.  172 Ill,  112 

Fletcher  v.  Elevator  Co.,  12  S.  D.  643,  82  N.  W.  184 201 

v.  Heath,  7  B.  &  C.  517 316 

Y.  Nelson,  6  N.  D.  94,  69  N.  W.  53 210 

v.  Railroad  Co.,  109  Mich.  363,  67  N.  W.  330 251 

Flexner  v.  Dickerson,  72  Ala.  318 95 

Floyd  v.  Day,  3  Mass.  403,  3  Am.  Dec.  171 435 

Floyd  Acceptances,  In  re,  7  Wall.  (U.  S.)  666,  19  L.  Ed.  169 198 

Fluker  v.  Railroad  Co.,  81  Ga.  461,  8  S.  E.  529,  2  L.  R.  A.  843,  12 

Am.  St.  Rep.  328 328 

Fogg  v.  Pew,  10  Gray  (Mass.)  409,  71  Am.  Dec.  662 248 

v.  Railroad  Corp.,  148  Mass.  513,  20  N.  E.  109,  12  Am.  St. 

Rep.    583 279 

T.  Virgin,  19  Me.  352,  36  Am.  Dec.  757 .344 


516  OASES  CITED. 

Page 
Foley  v.  Hill,  1  Ph.  399 437 

Fonda  v.  Van  Home,  15  Wend.  (N.  Y.)  631,  30  Am.  Dec.  77....     94 

Foote  v.  Bank,  17  Utah,  283,  54  Pac.  104 261 

Ford  v.  Danks,  16  La.  Ann.  119 142 

v.  Williams,  21  How.  (U.  S.)  287,  16  L.  Ed.  36 233,  304,  305 

Fordyce  v.  Peper  (O.  C.)  16  Fed.  516 428,  455 

Forney  v.  Shipp,  49  N.  C.  527 364 

Forrestier  v.  Bordinan,  1  Story  (U.  S.)  43,  Fed.  Gas.  No.  4,945. . 

402,  426 

Forsyth  v.  Day,  41  Me.  382 333,341 

46  Me.  176 54 

Forward  v.  Insurance  Co.,  142  N.  Y.  382,  37  N.  E.  615,  25  L.  R. 

A.  637 219 

Foster  v.  Bank,  17  Mass.  479,  9  Am.  Dec.  168 411 

v.  Bates,  1  D.  &  L.  400,  12  M.  &  W.  226 57 

v.  Graham,  166  Mass.  202,  44  N.  E.  129 304 

v.  Hoyt,  2  Johns.  Cas.  (N.  Y.)  327 474 

V.  Persch,  68  N.  Y.  400 361 

v.  Preston,  8  Cow.  (N.  Y.)  198 400 

V.Rockwell,   104   Mass.   167 69 

v.  Smith,  2  Cold.  (Tenn.)  474,  88  Am.  Dec.  604 392,  402,  403 

v.  Wiley,  27  Mich.  245,  15  Am.  Rep.  185 281 

Fourin  v.  Oswell,  1  Camp.  359 399 

Fowle  v.  Kerchner,  87  N.  C.  47 357 

Fowler  v.  Armour,  24  Ala.  194 449 

v.  Atkinson,  6  Minn.  578,  579  (Gil.  412) 348,  355 

v.  Down,  1  B.  &  P.  44,  47 394 

Fox  v.  Railroad  Co.,  86  Iowa,  368,  53  N.  W.  259,  17  L.  R.  A.  289  122 

v.  Zimmermann,  77  Wis.  414,  46  N.  W.  533 422 

Fradley  v.  Hyland  (C.  C.)  37  Fed.  49,  52,  2  L.  R.  A.  749 55,  243 

Frame  v.  Coal  Co.,  97  Pa.  309 309 

Francis  v.  Kerker,  85  111.  190 417 

Frank  v.  Jenkins,  22  Ohio  St.  597 68 

Frankland  r.  Johnson,  147  111.  520,  35  N.  E.  480,  37  Am.  St.  Rep. 

234  343 

Franklin  v.  Robinson,  1  Johns.  Ch.  (N.  Y.)  157 442 

Franklin  Ins.  Co.  v.  Sears  (C.  C.)  21  Fed.  290 397,  39n 

Franklin  Min.  Co.  v.  Harris,  24  Mich.  115 141 

Fraser  v.  Wyckoff,  63  N.  Y.  445 446 

Fred  W.  Wolf  Co.  v.  Salem,  33  111.  App.  614 428 

Freeman  v.  Cook,  2  Ex.  654 34 

v.  Otis,  9  Mass.  272,  6  Am.  Dec.  66 367 

v.  Robinson,  38  N.  J.  Law,  383,  20  Am.  Rep.  399 41 

T.  Rosher,  13  Q.  B.  780 72,  73 


CASES   CITED.  517 

Page 
Freeman's  Nat.  Bank  v.  Tube- Works,  151  Mass.  413,  24  N.  E.  779, 

8  L.  R.  A.  42,  21  Am.  St  Rep.  461 199 

Frelinghuysen  v.  Nugent  (C.  C.)  36  Fed.  229,  239 325 

French  v.  Price,  24  Pick.  (Mass.)  13 113 

Frenkel  v.  Hudson,  82  Ala.  158,  2  South.  758,  60  Am.  Rep.  736. ..  264 

Freyer  v.  McCord,  165  Pa.  539,  30  Atl.  1024 287 

Frick  &  Co.  v.  Lamed,  50  Kan.  776,  32  Pac.  383 408 

Friedlander  v.  Railroad  Co.,  130  U.  S.  416,  9  Sup.  Ct.  570,  32  L. 

Ed.  991  200,  290,  294 

Friesenhahn  v.  Bushnell,  47  Minn.  443,  50  N.  W.  597 416 

Frink  v.  Roe,  70  Cal.  296,  11  Pac.  820 154,  172 

Frith  v.  Cartland,  34  L.  J.  Ch.  301 325 

v.  Forbes.  4  De  Gex,  F.  &  J.  409 470 

Frixione  v.  Tagliafferro,  10  Moore,  P.  C.  175 87,  456 

Frothingham  v.  Everton,  12  N.  H.  239 396,  398,  401,  404 

Fry  v.  Platt,  32  Kan.  62,  3  Pac.  781 417 

Frye  v.  Tx>ckwood,  4  Cow.  (N.  Y.)  454 378 

Fuentes  v.  Montis,  L.  R.  4  C.  P.  93 319 

Fullam  v.  Inhabitants,  9  Allen  (Mass.)  1 244,  333 

Fuller  v.  Bennett,  2  Hare,  294 260 

v.  Brown,  11  Mete.  (Mass.)  440 452 

v.  Ellis,  39  Vt.  345,  94  Am.  Dec.  327 396 

y.  Hooper,  3  Gray  (Mass.)  334,  341 308,  345 

v.  Wilson,  3  Q.  B.  68,  1009 296 

Fullwood  v.  State,  67  Miss.  554,  7  South.  432 298 

Fultz  v.  Wimer,  34  Kan.  576,  9  Pac.  316 442 

Furber  v.  Barnes,  32  Minn.  105,  19  N.  W.  728 407 

Furneaux  v.  Esterly,  36  Kan.  539,  13  Pac.  824 208 

G 

Gadd  v.  Houghton,  1  Ex.  D.  357 357,  358,  366 

Gaffney  v.  Hayden,  110  Mass.  137,  14  Am.  Rep.  580 107 

Gage  v.  Allison,  1  Brev.  (S.  C.)  495,  2  Am.  Dec.  682 146 

Gaillard  v.  Smart,  6  Cow.  (N.  Y.)  385 228 

Gaines  v.  Miller,  111  U.  S.  395,  4  Sup.  Ct.  426,  28  L.  Ed.  466 61 

Gaither  v.  Myrick,  9  Md.  118,  66  Am.  Dec.  316 405 

Galbraith  v.  Elder,  8  Watts  (Pa.)  81 421 

Gale  v.  Leckie,  2  Stark.  107 92 

Galigher  v.  Jones,  129  U.  S.  192,  9  Sup.  Ct.  335,  32  L.  Ed.  658. . .  401 

Galland,  In  re,  31  Ch.  D.  296 468 

Gandell  v.  Pontigny,  4  Camp.  375 450 

Gansen  v.  Morton.  10  B.  &  C.  731  (1830) 161 


518  CASES   CITED. 

Page 

Gardner  v.  Allen,  6  Ala.  187,  41  Am.  Dec.  45 309 

v.  Baillie,  6  T.  R.  591 171 

v.  Davis,  2  C.  &  P.  49 387 

v.  Gardner,  5  Cush.  (Mass.)  483,  52  Am.  Dec.  740 21,  22,  28 

v.  McCutcheon,  4  Bear.  534 424 

v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192 417 

Garland  v.  Wells,  15  Neb.  298,  18  N.  W.  132 25 

Garratt  v.  Culluiu  (1710)  stated  In  Scott  v.  Surman,  Willes,  400  304 
Garrey  v.  Stadler,  67  Wis.  512,  30  N.  W.  787,  58  Am.  Rep.  877. ..  442 

Garth  v.  Howard,  8  Bing.  451 248 

Garton  v.  Bank,  34  Mich.  279 351 

Gausen  v.  Morton,  10  B.  &  C.  731 157 

Geisinger  v.  Beyl,  80  Wis.  443,  50  N.  W.  501 422 

Gelatt  v.  Ridge,  117  Mo.  553,  23  S.  W.  882,  38  Am.  St.  Rep.  083. .     86 
General  Convention  of  Congregational  Ministers  v.  Torkelson,  73 

Minn.  401,  76  N.  W.  215 213 

George  v.  Clagett,  7  T.  R.  359 309 

v.  Gobey,  128  Mass.  289,  35  Am.  Rep.  376 301 

v.  School  Dist,  6  Mete.  (Mass.)  497 115 

George  Whltechurch,  Limited,  v.  Cavanagh,  85  L.  T.  (N.  S.)  349 

[1892]  A.  C.  117 289 

Georgia  Pac.  R.  Co.  v.  Propst,  83  Ala.  518,  3  South.  764 122 

85  Ala.  203,  4  South.  711 122 

Gerdes  v.  Moody,  41  Cal.  335 336 

Gerhart  v.  Peck,  42  Mo.  App.  644 29 

German  Fire  Ins.  Co.  v.  Grunert,  112  111.  68,  1  N.  E.  113 216 

Gerrish  v.  Maher,  70  111.  470 214 

Gettins  v.  Scudder,  71  111.  86 407 

G.  H.  Montague,  The,  4  Blatchf.  461,  Fed.  Gas.  No.  5,377 207 

Gibbs  v.  Dickson,  33  Ark.  107 332 

Giblin  v.  McMulleu,  L.  R.  2  P.  C.  317 411 

Gibson  v.  Hardware  Co.,  94  Ala.  346,  10  South.  304 32,  34 

v.  Winter,  5  B.  &  Ad.  96 390,  391 

Gilbert  v.  Deshon,  107  N.  Y.  324,  14  N.  E.  318 194,  196,  197 

v.  Holmes,  64  111.  548 134,  154 

v.  How,  45  Minn.  121,  47  N.  W.  643,  22  Am.  St.  Rep.  724 168 

Gilbraith  v.  Llneberger,  69  N.  C.  145 37 

Gilchrist  v.  Clarke,  86  Tenn.  583,  8  S.  W.  572 446 

Gill  v.  Bicknell,  2  Cush.  (Mass.)  355 225 

v.  Kymer,  5  Moore,  503 223 

v.  Mlddleton,  105  Mass.  477,  7  Am.  Rep.  548 410-412 

Gillespie  v.  Worford,  2  Cold.  (Tenn.)  632 103 

Gillet  v.  Logan  County,  67  111.  256 93 


CASES  CITED.  519 

Page 

Gillett  Y.  Peppercorn,  3  Bea v.  78 416 

Gilley  v.  Gilley,  79  Me.  292,  9  Atl.  623,  1  Am.  St.  Rep.  307 41 

Gilliam  v.  Brown,  43  Miss.  641 425 

Gillow  v.  Aberdare,  9  T.  L.  R.  12 134 

Gilman  v.  Brown,  1  Mason  (U.  S.)  191,  Fed.  Gas.  No.  5,441 469 

Oilman  Linseed  Oil  Co.  v.  Norton,  89  Iowa,  434,  56  N.  W.  663,  48 

Am.  St.  Rep.  400 205,  316 

Given  v.  Lemoine,  35  Mo.  110 409 

Glaspie  v.  Keator,  5  C.  C.  A.  474,  56  Fed.  203 327 

Gleason  v.  Warner,  78  Minn.  405,  81  N.  W.  206 41 

Glor  v.  Kelly,  49  App.  Div.  617,  63  N.  Y.  Supp.  339 74 

Glover  v.  Langford  (1892)  8  Times  Law  R.  628 366 

Gobb  v.  Railway,  3  E.  &  E.  672 273 

Goddard  v.  Railway,  57  Me.  202,  2  Am.  Rep.  39 275 

Godefroy  v.  Dalton,  6  Bing.  460 406,  409 

Godin  v.  Assurance  Co.,  1  W.  Bl.  103,  1  Burrows,  489 466 

Godwin  v.  Assurance  Co.,  1  W.  Bl.  103 471 

v.  Francis,  L.  R.  5  C.  P.  295 373,  374 

Golson  v.  Ebert,  52  Mo.  260 50 

Gonzalia  v.  Bartelsman,  143  111.  634,  32  N.  E.  532 422 

Goodenough  v.  Thayer,  132  Mass.  152 357 

Goodenow  v.  Tyler,  7  Mass.  36,  5  Am.  Dec.  22 222 

Goodhue  v.  McClarty,  3  La.  Ann.  56 404 

Goodman  v.  Pocock,  15  Q.  B.  576 449,  450 

Goodspeed  v.  Bank,  22  Conn.  530.  58  Am.  Dec.  439 279 

Goodtitle  v.  Woodward,  3  B.  &  Aid.  689 80 

Goodwin  v.  Bowden,  54  Me.  424,  425 163,  164,  379 

v.  Robarts,  1  App.  Cas.  476 317 

Gordon  v.  Brewster,  7  Wis.  355 449 

v.  Bulkeley,  14  Serg.  &  R.  (Pa.)  331 21 

v.  Insurance  Co.,  2  Pick.  (Mass.)  249 42 

v.  Potter,  17  Vt.  348 41 

Goss  v.  Helbing,  77  Cal.  190,  19  Pac.  277 37 

v.  Stevens,  32  Minn.  472,  21  N.  W.  549 62,  64,  86 

Gossler  v.  Schepeler,  5  Daly  (N.  Y.>  476 476 

Gottschalk  v.  Smith,  156  111.  377,  40  N.  E.  937 436 

Gould  v.  Lead  Co.,  9  Cush.  (Mass.)  338,  57  Am.  Dec.  50 257 

Gowan  v.  Bush,  22  C.  C.  A.  196,  76  Fed.  349 184 

Gower  v.  Andrew,  59  Cal.  119,  43  Am.  Rep.  242 421 

Grace  v.  Insurance  Co.,  16  Blatchf.  (U.  S.)  433,  Fed.  Cas.  No. 

5,648    463 

Grady  v.  Insurance  Co.,  60  Mo.  116 119,  121 


520  CASES   CITED. 

Page 
Graf  ton  Nat.  Bank  v.  Wing,  172  Mass.  513,  52  N.  E.  1067,  43  L. 

R.  A.  831,  70  Am.  St  Rep.  303 346 

Graham  v.  Duckwall,  8  Bush    (Ky.)  12 222,  224,  389 

v.  Holt,  25  N.  C.  300,  40  Am.  Dec.  408 24 

v.  Institution,  46  Mo.  186 214 

v.  Williams,  114  Ga.  716,  40  S.  E.  790 77 

Granger  v.  Batchelder,  54  Vt.  248,  41  Am.  Rep.  846 228 

v.  Hathaway,  17  Mich.  500 376 

Grant  v.  Beard,  50  N.  H.  129 47 

v.  Ludlow,  8  Ohio  St  1 411,  412 

v.  Norway,  10  C.  B.  665 200,  222,  289 

Gratitudine,  The,  3  Rob.  Adm.  240 42 

Gratz  v.  Improvement  Co.,  27  C.  C.  A.  305,  82  Fed.  381,  40  L. 

R.  A.  393 139 

Grau  v.  McVicker,  8  Biss.  (U.  S.)  13,  Fed.  Gas.  No.  5,708 358 

Graul  v.  Strutzel,  53  Iowa,  715,  6  N.  W.  119,  36  Am.  Rep.  250. .  207 

Graves  v.  Horton,  38  Minn.  66,  35  N.  W.  568 15,  33,  257 

Gray  v.  Agnew,  95  111.  315 223 

v.  Gutteridge,  3  C.  &  P.  40 377 

v.  Haig,  20  Beav.  219 428,  454 

V.  Hook,  4  N.  Y.  449 93,  459 

Great  Western  Ry.  v.  Willis,  18  C.  B.  (N.  S.)  748 252 

Greely  v.  Bartlett,  1  Greenl.  (Me.)  172,  10  Am.  Dec.  54 223,  408 

Green  v.  Bartlett,  14  C.  B.  (N.  S.)  681 446 

V.Clark,  5  Denio    (N.  Y.)  497,  502 87 

T.  Cole,  127  Mo.  587,  30  S.  W.  135 139 

v.  Gilbert,  21  Wis.  395 452 

V.  Hinkley,  52  Iowa,  633,  3  N.  W.  688 15,  33 

v.  Hopke,  18  C.  B.  549 181 

V.  Knoch,  92  Mich.  26,  52  N.  W.  80 416 

V.  Kopke,  18  C.  B.  549 366 

V.  Lucas,  33  L.  T.  (N.  S.)  584 445 

V.  Mules,  30  L.  J.  C.  P.  343 441 

v.  Williams,  21  Kan.  64 434 

Greenberg  v.  Lumber  Co.,  90  Wis.  225,  63  N.  W.  93,  28  L.  R.  A. 

439,  48  Am.  St.  Rep.  911 383 

Greene  v.  Goddard,  9  Mete.  (Mass.)  212 457 

Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.)  447 51,  53 

Greenfield  Sav.  Bank  v.  Simons,  133  Mass.  415 417,  423 

Greenleaf  v.  Moody,  13  Allen  (Mass.)  363 402,  403 

Greentree  v.  Rosenstock,  61  N.  Y.  583 436 

Gregg  v.  Baldwin,  9  N.  D.  515,  84  N.  W.  373 261 

Gregory  v.  Piper,  9  B.  &  C.  591 268 


CASES   CITED.  621 

Page 

Grice  v.  Kendrick,  L.  R.  5  Q.  B.  340 390 

Griffin  v.  Ransdell,  71  Ind.  440 102 

Griggs  v.  Selden,  58  Vtv  561,  5  Atl.  504 37 

v.  Swift,  82  Ga.  392,  9  S.  E.  1062,  5  L.  R.  A.  405,  14  Am. 

St  Rep.  176  144 

Grindley  v.  Barker,  1  B.  &  P.  229 114 

Grinnell  v.  Buchanan,  1  Daly  (N.  Y.)  538 119 

Grist  v.  Backhouse,  20  N.  C.  496 308 

Griswold  v.  Gebbie,  126  Pa.  353,  17  Atl.  673,  12  Am.  St.  Rep.  878 

286,  287 

Groff  v.  Ramsey,  19  Minn.  44  (Gil.  24) 23 

Grojan  v.  White,  2  Stark.  443 307 

Groover  v.  Warfield,  50  Ga.  644 389,  391 

Grove  v.  Dublois,  1  T.  R.  112 437 

v.  Harvey,  12  Rob.  (La.)  221 81 

v.  Hodges,  55  Pa.  504 63 

Grumley  v.  Webb,  44  Mo.  444,  100  Am.  Dec.  304 417 

Grund  v.  Van  Vleck,  69  111.  479 54 

Guelich  v.  Bank,  56  Iowa,  434,  9  N.  W.  328,  41  Am.  Rep.  110 

128,  129 

Guernsey  v.  Cook,  117  Mass.  548 358 

Guerreiro  v.  Peile,  3  B.  &  Aid.  616 207,  316 

6  B.  &  Aid.  616 223 

Guesnard  v.  Railroad  Co.,  76  Ala.  453 177 

Guichard  v.  Morgan,  4  Moore,  36 223 

Guilford  v.  Stacer,  53  Ga.  618 213 

Gulick  v.  Grover,  33  N.  J.  Law,  463,  467,  97  Am.  Dec.  728 

33,  169,  171,  216 

Gundlach  v.  Fischer,  59  111.  172 133 

Gunn  v.  Roberts,  L.  R.  9   C.  P.  331 72 

Gunnis  v.  Erhart,  1  H.  Bl.  290 226 

Gunther  v.  Ullrich,  82  Wis.  220,  52  N.  W.  88,  33  Am.  St.  Rep.  32  287 
Gurley  v.  Armstead,  148  Mass.  267,  19  N.  E.  389,  2  L.  R.  A.  80, 

12  Am.  St.  Rep.  555 381 

Guthrie  v.  Armstrong,  5  B.  &  Aid.  628 113 

v.  Imbrie,  12  Or.  182,  6  Pac.  664,  53  Am.  Rep.  331 347 

Guyon  v.  Lewis,  7  Wend.  (N.  Y.)  26 244 

Gwilliam  v.  Twist  [1895]  1  Q.  B.  577 122 

[1895]  2  Q.  B.  84 122 

Gwyn  y.  Railroad  Co.,  85  N.  0.  429,  39  Am.  Rep.  708 476 


522  CASES   CITED. 

H 

Page 

Haas  v.  Damon,  9  Iowa,  589 433 

v.  Society,  80  111.  248 ." 251 

Haebler  v.  Luttgen,  61  Minn.  315,  63  N.  W.  720 469 

2  App.  Div.  390,  37  N.  Y.  Supp.  794 433 

Hagan  v.  Eailroad  Co.,  3  R.  I.  88,  62  Am.  Dec.  377 275 

Hagedorn  v.  Oliverson,  13  East,  274 83 

2  M.  &  S.  485 57 

Haile  v.  Peirce,  32  Md.  327,  3  Am.  Rep.  139 340 

Haines  v.  Tohlmann,  25  N.  J.  Eq.  179 213 

Halbronn  v.  International  Horse  Agency  (1903)  1  K.  B.  270. ..  457 

Hale  v.  Woods,  10  N.  H.  470,  34  Am.  Dec.  176 333 

Haley  v.  Belting  Co.,  140  Mass.  73,  2  N.  E.  785 244 

Hall  v.  Bishop,  3  Daly  (N.  Y.)  109 109 

v.  Bliss,  118  Mass.  554,  19  Am.  Rep.  476 108,  149,  158 

v.  Cockrell,    28  Ala.   507 367 

v.  Crandall.  29  Cal.  567,  89  Am.  Dec.  64 369 

V.  Finch,  29  Wis.  278,  9  Am.  Rep.  559 18 

v.  Gambrill  (C.  C.)  88  Fed.  709 154 

V.Hall,  44  N.  H.  293 443 

v.  Harper,'  17  111.  82 69 

Y.  Insurance  Co.,  23  Wash.  610,  63  Pac.  505,  51  L.  R.  A.  288, 

83  Am.  St.  R*ep.  844 219 

v.  Lauderdale,  46  N.  Y.  72 372 

v.  Peck,  10  Vt.  474 432 

v.  Storrs,  7  Wis.  253 '. 178,  398 

v.  Wallace,  88  Cal.  434,  26  Pac.  360 29 

v.  White,  123  Pa.  95,  16  Atl.  521 66 

Hallett's  Estate,  In  re,  13  Ch.  D.  696 324,  325 

Halliday  v.  Stuart,  151  U.  S.  229,  14  Sup.  Ct.  302,  38  L.  Ed.  141. .  228 

Halsted  v.  Rabb,  8  Port.  (Ala.)  65 436 

Haluptzok  v.  Railroad  Co.,  55  Minn.  446,  57  N.  W.  144,  26  L. 

R.  A.  739 18,  116 

Ham  v.  Boody,  20  N.  H.  411,  51  Am.  Dec.  235 81 

Hamburgh,  The,  Br.  &  Lush.  253 42 

Hamill  v.  Foute,  51  Md.  419 450 

Hamilton  v.  Love,  152  Ind.  641,  53  N.  E.  181,  54  N.  E.  437,  71 

Am.  St.  Rep.  384 450 

Hamlin  v.  Schulte,  34  Minn.  534,  27  N.  W.  301 446 

v.  Sears,  82  N.  Y.  327 54 

Hamrnett  v.  Brown,  60  Ala.  498 432,  433 


CASES   CITED.  523 

Page 
Hammond  v.  Barclay,  2  East,  227 471,  473 

v.  Hannin,  21  Mich.  374,  4  Am.  Rep.  490 21,  23,  64 

v.  Hussey,  51  N.  H.  40.  12  Am.  Rep.  41 410,  411 

Hancock  v.  Gomez,  58  Barb.  |N.  Y.)  490 424 

Haney  v.  Caldwell,  35  Ark.  156 141 

Hankins  v.  Baker,  46  N.  Y.  666 82 

Hanks  v.  Drake,  49  Barb.  (N.  Y.)  186 87 

Hannan's  Empress  Gold  Mining  &  D.  Co.  [1896]  2  Ch.  643 162 

Hanover  R.  Co.  v.  Coyle,  55  Pa.  396 253 

Hansback  v.  Corrigan,  7  Kan.  App.  479,  54  Pac.  129 463 

Hanscom  v.  Railroad  Co.,  53  Minn.  119,  54  N.  W.  944,  20  L.  R. 

A.  695 44 

Hansell  v.  Erickson,  28  111.  257 453 

Hardee  v.  Hall,  12  Bush  (Ky.)  327 176 

Hardeman  v.  Ford,  12  Ga.  205 72 

Hardin  v.  Insurance  Co.,  90  Va.  413,  18  S.  E.  911 37 

Hardman  v.  Wilcox,  9  Bing.  382 424 

Hardwick  v.  Vernon,  14  Ves.  504 435 

Hardy  v.  Express  Co.  (Mass.)  65  N.  E.  375 378 

v.  Waters,  38   Me.  450 96,  97 

Hare  v.  Bailey,  73  Minn.  409,  76  N.  W.  213 213 

Harlan  v.  Ely,  68  Gal.  522,  9  Pac.  947 207,  400 

Harland  v.  Lilieuthal,  53  N.  Y.  438 109 

Harnickell  v.  Orndorff,  35  Md.  341 146 

Harper  v.  Bank,  54  Ohio  St.  425,  44  N.  E.  97 239,  245 

v.  Goodsell,  L.  R.  5  Q.  B.  422 171 

v.  Little,  2  Greenl.  (Me.)  14,  11  Am.  Dec.  25 144,  145 

Harriman  v.  Stowe,  57  Mo.  93 383 

Harrington  v.  Churchward,  29  L.  J.  Ch.  521 463 

v.  Dock  Co.,  3  Q.  B.  D.  548 93 

Harris  v.  Johnston,  54  Minn.  177,  55  N.  W.  970,  40  Am.  St.  Rep. 

312  169 

Harrison  v.  Jackson,  7  T.  R.  207 21 

v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435 49 

Harrod  v.  McDaniels,  126  Mass.  413 71 

Harsant  v.  Elaine,  56  L.  J.  Q.  B.  511 430,  435 

Hart  v.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62 429 

Hartas  v.  Ribbons,  22  Q.  B.  D.  254 458 

Hartford  Fire  Ins.  Co.  v.  Farrish,  73  111.  166 219 

v.  Wilcox,  57  111.  180 146,  172 

Hartley's  Appeal,  53  Pa.  212,  91  Am.  Dec.  207 , . . .  154 

Hartlove  v.  William  Fait  Co.,  89  Md.  254,  43  Atl.  62 69 

Hartop,  Ex  parte,  12  Ves.  352 181,  361,  362 


524  CASES  CITED. 

Page 

Hart's   Appeal,   32   Conn.   520 434 

Harvey  v.  Merrill,  150  Mass.  1,  22  N.  E.  49,  5  L..  B.  A.  200,  15 

Am.    St   Rep.   159 93,460 

V.  Smith,  179  Mass.  592,  61  N.  B.  217 158 

v.  Turner,  4  Rawle  (Pa.)  222 426 

Haselar  v.  Lemogue,  5  C.  B.  N.  S.  530 62 

Haskell  v.  Starbird,  152  Mass.  117,  25  N.  E.  14,  23  Am.  St.  Rep. 

809    287,  288 

Haskin  v.  Haskin,  41  111.  197 458 

Haskins  v.  Royster,  70  N.  C.  601,  16  Am.  Rep.  780 329 

Hastings  v.  Bangor  House,  18  Me.  436 66 

v.  Dollarhide,  24  Gal.  195 96 

v.  Pearson  [1892]  1  Q.  B.  62 322 

Hatch  v.  Coddington.  95  U.  S.  48,  24  L.  Ed.  339 38,  138 

v.  Squires,  11  Mich.  185 256 

v.Taylor,  10  N.  H.  538,  547 193,  195,  196,  237 

Hatfield  v.  Phillips,  9  M.  &  W.  647 318 

v.Reynolds,  34  Barb.  (N.  Y.)  612 213 

Hatzfield  v.  Gulden,  7  Watts  (Pa.)  152,  31  Am.  Dec.  750 93 

Hauss  v.  Niblack,  80  Ind.  407 65 

Hauxhurst  v.  Hovey,  26  Vt.  544 434 

Haverill  Mut.  Fire  Ins.  Co.  v.  Newhall,  1  Allen  (Mass.)  130 348 

Hawkins  v.  Chace,  19  Pick.  (Mass.)  502,  505 29 

v.  McGroarty,  110  Mo.  550,  19  S.  W.  830. 64 

v.Walker,  4  Yerg.    (Tenn.)   188 431 

Hawks  v.  Dunn,  1  Tyr.  413,  1  C.  &  J.  519 476 

Hawley  v.  Cramer,  4  Cow.  (N.  Y.)  730 418 

v.  Keeler,  53  N.  Y.  116 113 

Hawtayne  v.  Bourne,  7  M.  &  W.  595 43,  122,  218 

Hay  v.  Goldschmidt,  2  Smith  (Eng.)  79 171 

Hayden  v.  Bank,  29  111.  App.  458 390 

Hayes  v.  Crane,  48  Minn.  39,  50  N.  W.  925 358,  360,  361 

v.  Stone,  7  Hill  (N.  Y.)  128 396 

Hazard  v.  Spears,  43  N.  Y.  469 69 

43  N.  Y.  485 87 

Hazeltine  v.  Miller,  44  Me.  177 217 

Heald  v.  Hendy,  89  Cal.  632,  27  Pac.  67 217 

v.  Kenworthy,  10  Ex.  739 241 

Heard  v.  Brewer,  4  Daly  (N.  Y.)  136 468 

v.  Pilley,  4  Ch.  App.  Cas.  548 21 

Heath  v.  Goslin,  80  Mo.  310,  50  Am.  Rep.  505 112 

v.  Nutter,  50  Me.  378 21,  63 

V.Paul,  81  Wis.  532,  51  N.  W.  876 218 

v.  Stoddard,  91  Me.  499,  40  Atl.  547 205 


CASES  CITED.  525 

Page 

Hedden  v.  Griffin,  136  Mass.  229,  49  Am.  Rep.  25 382 

Hedin  v.  Institution,  «32  Minn.  146,  64  N.  W.  158,  35  L.  R.  A.  417, 

54  Am.  St  Rep.  628 382 

Heenan  v.  Nash,  8  Minn.  407  (Gil.  363),  83  Am.  Dec.  790 354 

Heffner  v.  Brownell,  70  Iowa,  591,  31  N.  W.  947 347 

Heffron  v.  Pollard.  73  Tez.  96,  11  S.  W.  165,  15  Am.  St.  Rep.  764  367 

Hefner  v.  Vandolab,  62  111.  483,  14  Am.  Rep.  106 51 

Hegenmyer  v.  Marks,  37  Minn.  6,  32  N.  W.  785,  5  Am.  St.  Rep. 

808 230,  423,  426 

Heinemann  y.  Heard,  50  N.  Y.  35 405 

Hellings  v.  Russell,  33  L.  T.  <N.  S.)  380 319 

Hemmings  v.  Pugh,  4  Giff.  456 437 

Hemstreet  v.  Burdick,  90  111.  444 169,  170 

Henchman  v.  Roberts,  2  Har.  (Del.)  74 102 

Henderson  v.  Barnwell,  1  Y.  &  J.  387 117,  224 

v.  Beard,  51  Ark.  483,  11  S.  W.  766 210 

v.Ford,  46  Tex.   627 148 

v.  Mayhew,  2  Gill  (Md.)  393,  41  Am.  Dec.  434 239 

v.  Navigation  Co.,  5  El.  &  Bl.  409 31 

Henderson,  Hull  &  Co.  v.  McNally,  48  App.  Div.  134,  62  N.  Y. 

Supp.  582  310 

Henricus  v.  Englert,  137  N.  Y.  488,  33  N.  E.  550 244,  308 

Henrietta,  The  (D.  C.)  91  Fed.  675 74 

Henry  v.  Allen,  151  N.  Y.  1,  45  N.  E.  355,  36  L.  R.  A.  658 264 

v.  Heeb,  114  Ind.  275,  16  N.  E.  606,  5  Am.  St  Rep.  613. .  .51,  53 
Henry  Ames  Packing  &  Provision  Co.  v.  Tucker,  8  Mo.  App.  95. .  365 
Henry  Christian  Building  &  Loan  Ass'n  v.  Walton,  181  Pa.  201, 

37  Atl.  261,  59  Am.  St  Rep.  636 50 

Henry  Hess  &  Co.  v.  Baar,  14  Misc.  Rep.  286,  35  N.  Y.  Supp.  687    62 

Henson  v.  Mercantile  Co.,  48  Mo.  App.  214 217 

Hermes  v.  Railroad  Co.,  80  Wis.  590,  50  N.  W.  584,  27  Am.  St. 

Rep.   69    254 

Hern  v.  Nichols,  1  Salk.  289 189,  286 

Herring  v.  Hoppock,  15  N.  Y.  409 268 

v.  Hottendorf ,  74  N.   C.  588 214 

v.  Skaggs,  62  Ala.  180,  34  Am.  Rep.  4 178,  208 

73  Ala.  446  208 

Hersey  v.  Lambert,  50  Minn.  373,  52  N.  W.  963 23 

Hertzog  v.  Hertzog,  29  Pa.  465 18 

Hess  v.  Rau,  17  J.  D.  S.  324 164 

95  N.  Y.  359  164 

Hesse  v.  Briant  6  De  G.,  M.  &  G.  623 418 

Hewison  v.  Guthrie,  2  Bing.  (N.  S.)  755 470 


526  GASES  CITED. 

Page 

Heyn  v.  O'Hagen,  60  Mich.  150,  26  N.  W.  861 71,  72 

Hibbard  v.  Peek,  75  Wis.  619,  44  N.  W.  641 177,  462 

Hibblewhite  v.  McMorine,  6  M.  &  W.  200 24 

Hickman  v.  Green,  123  Mo.  165,  22  S.  W.  455,  27  S.  W.  440,  29 

L.  R.  A.  39 262,  264 

Hidden  v.  Waldo,  55  N.  Y.  294 466 

Hiern  v.  Mill,  13  Ves.  120 : 258 

Higginbotham  v.  May,  90  Va.  233,  17  S.  E.  941 66 

Higgins  v.  Moore,  34  N.  Y.  417 209,  224 

v.  Railroad  Co.,  46  N.  Y.  23,  7  Am.  Rep.  293 272 

v.  Senior,  8  M.  &  W.  834 233,  234,  360 

Hill  v.  Caverly,  7  N.  H.  215,  26  Am.  Dec.  735 383 

v.  Day,  34  N.  J.  Eq.  150 99 

V.Hill,  121  Ind.  255,  23  N.  E.  87 443 

v.  Hunt,  9  Gray  (Mass.)  66 435 

v.  Miller,  76  N.  Y.  32 212 

v.  Morris,  15  Mo.  App.  322 462 

v.  Publishing  Co.,  154  Mass.  172,  28  N.  E.  142,  13  L.  B.  A. 

193,  26  Am.  St.  Rep.  230 294 

V.  Wand,  47  Kan.  340,  27  Pac.  988,  27  Am.  St.  Rep.  288 37 

v.Williams,  59  N.  C.  242 443 

Hillberry  v.  Hatton,  6  El.  &  B.  868 72 

2  H.  &  C.  822 48,  89 

Hills  v.  Bannister,  8  Cow.  (N.  Y.)  31 348 

Hill's  Ex'rs  v.  Day,  34  N.  J.  Eq.  150 146,  147 

Hilton  v.  Vanderbilt,  82  N.  Y.  591 404 

Hinchman  v.  E.  I.  Co.,  1  Ves.  Jr.  298 422 

Hinckley  v.  Railroad  Co.,  100  U.  S.  153,  25  L.  Ed.  591. , 435 

Hinde  v.  Whitehouse,  7  East,.  558 225 

Hinds  v.  Henry,  36  N.  J.  Law,  328 441,  442,  446 

Hirshfield  v.  Waldron,  54  Mich.  649,  20  N.  W.  628 209,  212 

Hitchcock  v.  Buchanan,  105  U.  S.  416,  26  L.  Ed.  1078 345 

v.  Watson,  18  111.  289 423 

Hittson  v.  Browne,  3  Colo.  304 109 

Hobday  v.  Peters,  28  Beav.  349 417 

Hoboken  Printing  &  Publishing  Co.  v.  Kahn,  59  N.  J.  Law,  218, 

35  Atl.  1053,  59  Am.  St.  Rep.  585 278 

Hobson  v.  Hassett,  76  Cal.  203,  18  Pac.  320,  9  Am.  St.  Rep.  193  348 

v.  Peake,  44  La.  Ann.  383,  10  South.  762 455 

Hodgson  v.  Anderson,  3  B.  &  C.  842 163,  164 

v.  Dexter,  1  Cranch  (U.  S.)  345,  2  L.  Ed.  130 336 

v.  Raphael,  105  Ga.  480,  30  S.  E.  416 417 

Hoene  v.  Pollak,  118  Ala.  617,  24  South.  349,  72  Am.  St.  Rep.  189  102 


CASES  CITED.  527 

Page 

Hofflein  r.  Moss,  14  C.  C.  A.  459,  67  Fed.  440 455 

Hoffman  v.  Carow,  22  Wend.  (N.  Y.)  285 380 

Hogan  v.  Shorb,  24  Wend.  (U.  S.)  458 309 

Hogg  v.  Snaith,  1  Taunt.  347 171.  172,  214 

Holbrook  v.  Cbamberlin,  116  Mass.  155,  17  Am.  Rep.  146 64 

v.  Oberne,  56  Iowa,  324,  9  N.  W.  291 217 

Holden  v.  Bank,  72  N.  Y.  286 261 

v.  Curry,  85  Wis.  504,  55  N.  W.  965 95 

v.  Railroad  Co.,  73  Vt.  317,  50  Atl.  1096 390 

v.  Starks,  159  Mass.  503,  34  N.  E.  1069,  38  Am.  St.  Rep.  451  446 

Holding  v.  Elliott,  5  H.  &  N.  117 360,  362 

Holker  v.  Parker,  7  Cranch  (U.  S.)  436,  452,  3  L.  Ed.  396. .  .228,  229 
Holladay  v.  Daily,  19  Wall.  (U.  S.)  606,  609,  22  L.  Ed.  187. .  .103,  169 

Holland  v.  Moon,  39  Ark.  120 103 

v.  Russell,  4  B.  &  S.  14 377 

Hollins  v.  Fowler,  L.  R.  7  Q.  B.  616 380 

L.  R.  7  H.  L.  757 380 

v.  Hubbard,  165  N.  Y.  534,  59  N.  E.  317 476 

Hollman  v.  Pullin,  1  Cababe  &  E.  254 375,  391 

Holly  v.  Huggeford,  8  Pick.  (Mass.)  73,  19  Am.  Dec.  303 316 

Holm  v.  Bennett,  43  Neb.  808,  62  N.  W.  194 72 

Holmes  v.  Cathcart  (Minn.)  92  N.  W.  956 426 

v.  McAllister,  123  Mich.  493,  82  N.  W.  220,  48  L.  R.  A.  396. .     45 

v.  Peck,  1  R.  I.  242 405,  406,  409 

Holt  v.  Ely,  1  E.  &  B.  795 393 

v.Schneider,  57  Neb.  523,  77  N.  W.  1086 35 

Homan  v.  Insurance  Co.,  7  Mo.  App.  22 463 

Hood  v.  Reeve,  3  C.  &  P.  532 248 

Hooe  v.  Oxley,  1  Wash.  (Va.)  19,  1  Am.  Dec.  425 37 

Hooker  v.  Railroad  Co.,  76  Wis.  542,  44  N.  W.  1085 254 

Hooper  v.  Treffey,  1  Ex.  17 457 

Hoover  v.  Wise,  91  U.  S.  308,  23  L.  Ed.  392 265,  266 

Hopkins  v.  Blane,  1  Call  (Va.)  361 212 

v.  Insurance  Co.,  57  Iowa,  203,  10  N.  W.  605,  42  Am.  Rep.  41  287 

v.  Mehaffy,  11  Serg.  &  R.  (Pa.)  126 336 

T.  Mollinieux,  4  Wend.  (N.  Y.)  465 106 

v.  Turnpike  Co.,  4  Humph.  (Tenn.)  403 31 

Horn  v.  Ass'n,  22  Minn.  233 140,  141,  450 

Hornby  v.  Lacy,  6  M.  &  S.  166 305,  437,  43S 

Homer  v.  Lawrence,  37  N.  J.  Law,  46 383 

Horsford  v.  Wilson,  1  Taunt.  12 445,  44G 

Horton  v.  McCarty,  53  Me.  394 225 

Houghtaling  v.  Marvin,  7  Barb.  (N.  Y.)  412 157 


528  CASES  CITED. 

Page 

Houghton  v.  Bank,  26  Wis.  663,  7  Am.  Rep.  107 351 

v.  Matthews,  3  B.  &  P.  485,  489 222,  437,  468 

Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Gas.  317 284 

Housatonic  Bank  v.  Martin,  1  Mete.  (Mass.)  294 267 

Houseman  v.  Association,  81  Pa.  256 260 

Hovey  v.  Pitcher,  13  Mo.  191 361 

Hovil  v.  Pack,  7  East,  164 61 

Howard  v.  Baillie,  2  H.  Bl.  618 170 

v.  Braithwaite,  1  Ves.  &  B.  202,  209 197 

v.  Daly,  61  N.  Y.  362,  369,  19  Am.  Rep.  285 449,  450 

V.  Duucan,  3  Lans.  175 51 

T.  Ivory  Co.,  38  Ch.  D.  156 56 

v.  Sheward,  L.  R.  2  C.  P.  148 208 

Howe  v.  Newmarch,  12  Allen  (Mass.)  49 273 

v.  Railroad  Co.,  37  N.  Y.  297 , 461 

Howell  v.  Caryl,  50  Mo.  App.  444 282 

v.  Gordon,  40  Ga.  302 149 

v.  Ransom,  11  Paige  (N.  Y.)  538 418 

Howe  Mach.  Co.  v.  Ballwegg,  89  111.  315 212 

v.  Clark,  15  Kan.  492 256,  257 

Howland  v.  Woodruff,  60  N.  Y.  73 321,  323 

Hubbard  v.  Tenbrook,  124  Pa.  291,  16  Atl.  817,  2  L.  R.  A.  823,  10 

Am.  St.  Rep.  585 211,  217,  237 

Hudgins  v.  Morrow,  47  Ark.  515,  2  S.  W.  104 158 

Hudson  v.  Archer,  4  S.  D.  128,  55  N.  W.  1099 388 

v.  Granger,  5  B.  &  Aid.  27 305 

v.  Revett,  5  Bing.  368 21 

Huff  v.  Watkins,  15  S.  C.  82,  40  Am.  Rep.  680 329 

Hughes  v.  Wamsutta  Mills,  11  Allen  (Mass.)  201 452 

V.Washington,  72  111.  84 417 

Hull  v.  Pigerskill,  1  Brod.  &  B.  282 89 

Hulse  v.  Young,  16  Johns.  (N.  Y.)  1 227,  389 

Humble  v.  Hunter,  12  Q.  B.  310 234,  306 

Hun  v.  Gary,  82  N.  Y.  65,  71,  37  Am.  Rep.  546 412 

Hungerford  v.  Moore,  65  Ala.  232 424 

Hunt  v.  Agricultural  Works,  69  Minn.  539,  72  N.  W.  813 72 

v.  Knickerbacker,  5  Johns.  326 425 

v.  Maniere,  11  Jur.  (N.  S.)  28 424 

v.  Rousmanier,  8  Wheat.  (U.  S.)  174,  5  L.  Ed.  589 

136,  144,  154,  156,  161,  163 

Hunter  v.  Giddings,  97  Mass.  41,  93  Am.  Dec.  54 236,  393 

v.  Machine  Co.,  20  Barb.  (N.  Y.)  493 212 

V.Parker,  7  M.  &  W.  322 42,  65 


CASES   CITED.  529 

Page 

Huntlngton  v.  Knox,  7  Cush.  (Mass.)  371,  374 233,  304-306 

Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  516 177,  282 

Hurlbert  v.  Brigharu,  56  Vt  368 467 

Hurlbut  v.  Marshall,  62  Wis.  590,  22  N.  W.  852 104 

Hurley  v.  Watson,  68  Mich.  531,  36  N.  W.  726 195,  202,  214 

Hurst  v.  Holding,  3  Taunt.  32 455 

Huston  v.  Cantril,  11  Leigh  (Va.)  136 157 

Hutchings  v.  Ladd,  16  Mich.  493 397 

Hutchins  v.  Byrnes,  9  Gray  (Mass.)  367 333 

v.  Oilman,  9  N.  H.  359 432 

y.  Hebbard,  34  N.  Y.  27 157 

T.  Olcutt,  4  Vt  549,  24  Am.  Dec.  634 470 

Hutchinson  v.  Wheeler,  3  Allen  (Mass.)  577 364 

Huth,  Ex  parte,  Mont.  &  C.  667 230 

Hutton  v.  Bullock,  9  Q.  B.  572 365 

Hyatt  v.  Clark,  118  N.  Y.  563,  23  N.  E.  891 72 

Hyde  v.  Bank,  17  La.  560,  36  Am.  Dec.  621 129 

v.Johnson,  2  Bing.  (N.  C.)  776 91 

Hyman  v.   Gray,  49  N.   C.  155 434,  435 

Hypes  v.  Griffin,  89  111.  134,31  Am.  Rep.  71 339 

I 

Idaho  Forwarding  Co.  y.  Insurance  Co.,  8  Utah,  41,  29  Pac. 

826,  17  L.   R.   A.   586 250 

Illges  v.  Dexter,  73  Ga.  362 436 

Illinois  Cent.  R.  Co.  v.  Latham,  72  Miss.  32,  16  South.  757 271 

Illinois  Linen  Co.  v.  Hough,  91  111.  63 428 

Ilsley  v.  Merriam,  7  Cush.  (Mass.)  242,  54  Am.  Dec.  721 310 

Imperial  Bank  v.  London  &  St.  Katherine's  Docks,  5  Ch.  D.  195  476 

Imperial  Wine  Co.,  In  re,  L.  R.  14  Eq.  417 448 

Importers'  &  Traders'  Nat.  Bank  v.  Peters,  123  N.  Y.  272,  25  N. 

E.  319 324 

Inchenald  v.  Western  Neilgherry  Coffee,  Etc.,  Co.,  17  C.  B.  (N. 

S.)  733   451 

Indianapolis  &  St  L.  R.  Co.  v.  Morris,  67  111.  295 44 

Inglish  v.  Ayer,  79  Mich.  516,  44  N.  W.  942 190 

Ingram  v.  Little,  14  Ga.  173,  58  Am.  Dec.  549 24- 

Inhabitants  of  Buckland  v.  Inhabitants,  16  Mass.  396 120,  228 

Inhabitants  of  Nobleboro  v.  Clark,  68  Me.  87,  28  Am.  Rep.  2. . .     31 
Inhabitants  of  South  Berwick  v.  Huntress,  53  Me.  89,  87  Am. 

Dec.  535   22,   25,26 

TIFF.P.&  A.— 34 


530  CASES  CITED. 

Page 
Innerarlty  T.  Bank,  139  Mass.  332,  1  N.  B.  282,  52  Am.  Rep.  710 

263,  267 

International  Bank  v.  Ferris,  118  111.  465,  8  N.  B.  825 72 

Ireland  v.  Livingstone,  L.  R.  5  H.  L.  395 173 

v.  Thompson,  4  C.  B.  149 210 

Ironwood  Store  Co.  v.  Harrison,  75  Mich.  197,  42  N.  W.  808.. 54,  58 

Irvine  v.  Grady,  85  Tex.  120,  19  S.  W.  1028 259 

v.  Union  Bank,  2  App.  Gas.  366 58 

v.  Watson,  5  Q.  B.  D.  102 243 

5  Q.  B.  D.  414  (1880) 242,  243 

5  Q.  B.  D.  623 239,  242 

Irwin  v.  Pulley  Co.,  20  Ind.  App.  101,  48  N.  B.  601,  50  N.  B.  317  129 
v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L.  Ed.  225.  .93,  460 

Isberg  v.  Bowden,  8  Ex.  852 390 

Ish  v.  Crane,  8  Ohio  St.  520 145 

13  Ohio  St.  574 145 

Isham  v.  Burgett,  157  Mass.  546,  32  N.  E.  907 367 

v.  Parker,  3  Wash.  St.  755,  29  Pac.  835 405,  409 

V.  Post,  141  N.  Y.  100,  35  N.  E.  1084,  23  L.  R.  A.  90,  38  Am. 

St.  Rep.  766 19,  412-414 

Iter  v.  Lampson,  35  Vt.  179,  82  Am.  Dec.  634 36 

J 

Jackson  v.  Baker,  1  Wash.  C.  G.  (TJ.  S.)  445,  Fed.  Gas.  No.  7,130  433 

V.  Bank,  6  Har.  &  J.  (Md.)  146 129 

92  Tenn.  154,  20  S.  W.  820,  822,  18  L.  R.  A.  663,  36  Am. 

St.  Rep.  81  214,  215 

T.  Insurance  Co.,  79  Minn.  43,  81  N.  W.  545,  82  N.  W.  366. .  214 

Jacobs  v.  Latour,  5  Bing.  130 472 

v.  Warfield,  23  La.  Ann.  395 140 

Jacquin  v.  Boutard,  89  Hun,  437,  35  N.  Y.  Supp.  496 445 

157  N.  Y.  686,  51  N.  E.  1091 445 

James  v.  Allen  c'ounty,  44  Ohio  St.  226,  6  N.  B.  246,  58  Am.  Rep. 

821  449,  450 

v.Russell,  92  N.  C.  194 38 

v.Smith    [1891]  1  Ch.  D.  384 421 

Jamison  v.  Weaver,  81  Iowa,  212,  46  N.  W.  996 409 

Janes  v.  Bank,  9  Okl.  546,  60  Pac.  290 340 

Janney  v.  Boyd,  30  Minn.  319,  15  N.  W.  308 '*. 209 

Jansen  v.  McCahill,  22  Cal.  563,  83  Am.  Dec.  84 22 

Jaques  v.  Todd,  3  Wend.  (N.  Y.)  83 211 

Jarmain  v.  Hooper,  6  M.  &  G.  827 282 


CASES   CITED.  531 

Page 

Janrts  v.  Hoyt,  2  Hun  (N.  T.)  637 403 

v.Rogers,  15  Mass.  389,  395,  396,  408 466,  470,  472 

Jaullery  v.  Britten,  4  Blng.  N.  C.  242 319 

Jayne  v.  Mickey,  55  Pa.  260 434 

Jefferson  County  Sup'rs  v.  Arrighl,  54  Miss.  668 49 

Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  518,  28  Am.  Dec.  476 287 

v.  Hursh,  49  Mich.  31,  12  N.  W.  898 168 

Jeffries  v.  Insurance  Co.,  110  U.  S.  305,  4  Sup.  Ct.  8,  28  L.  Ed.  156  229 

v.  Wiester,  2  Sawy.  (U.  S.)  135,  Fed.  Gas.  No.  7,254 417,  422 

Jefts  v.  York,  4  Gush.  (Mass.)  372,  50  Am.  Dec.  791 342 

10  Gush.  (Mass.)  392 372,  373 

Jenkins  v.  Atkins,  1  Humph.  (Tenn.)  294,  34  Am.  Dec.  648....  145 

T.Bacon,  111  Mass.  373,  15  Am.  Rep.  33 402 

v.  Eldredge,  3  Story  (U.  S.)  181,  Fed.  Gas.  No.  7,266 420 

v.  Hutchinson,   13  Q.  B.  744 367,  369 

T.  Morris,  16  M.  &  W.  877 354 

v.Walter,  8  Gill  &  J.  (Md.)  218,  29  Am.  Dec.  539 430 

Jenkyns  v.  Usborne,  7  M.  &  G.  678 320 

Jett  v.  Hempstead,  25  Ark.  462,  463 432-134 

Jewett  Pub.  Co.  v.  Butler,  159  Mass.  517,  34  N.  E.  1087 92 

Joel  v.  Morison,  6  C.  &  P.  501 270 

Johns  v.  Simmons,  2  Q.  B.  425 42 

Johnson,  In  re,  8  Q.  B.  D.  262 475 

v.  Armstrong,  83  Tex.  325,  18  S.  W.  594,  29  Am.  St  Rep.  648  363 

v.  Barber,  5  Gilman,  425,  50  Am.  Dec.  416 380 

v.  Buck,  35  N.  J.  Law,  338,  342,  10  Am.  Rep.  243 108,  227 

T.  Christian,  128  U.  S.  374,  9  Sup.  Ct  87,  32  L.  Ed,  412 38 

T.Clark,  20  Ind.  App.  247,  50  N.  E.  762 466 

T.Craig,  21  Ark.  533 210 

T.  Credit  Lyonnais,  2  C.  P.  D.  224..* 204,  320 

3  C.  P.  D.  32 204,  320 

T.Cunningham,  1  Ala.  249 120,  121 

T.Dodge,  17  HI.  433 21 

T.Hulings,  103  Pa.  498,  49  Am.  Rep.  131 109 

T.Hunt,  81  Ky.  321 93 

T.  Hurley,  115  Mo.  513,  22  S.  W.  492 34 

T.  Investment  Co.,  46  Neb.  480,  64  N.  W.  1100 38 

T.Johnson  (C.  C.)  31  Fed.  700,  702 80,  81 

1  Dana  (Ky.)  364 336 

27  S.  C.  309,  3  S.  E.  606,  13  Am.  St.  Rep.  636 158 

T.Johnson's  Adm'rs,  Wright  (Ohio)  594 146 

T.McGruder,  15  Mo.  365 210 

T.Martin,  11  La.  Ann.  27,  66  Am.  Dec.  193 405,  407 


532  CASES  CITED. 

Page 

Johnson  v.  Ogilby,  3  P.  Wm.  277 181,  362 

v.Steamship  Co.,  5  Cal.  407 462 

v.  Stone,  40  N.  H.  197,  201,  75  Am.  Dec.  706 33 

v.  Sumner,  3  H.  &  N.  261 40 

v.  Wingate,  29  Me.  404 69 

Johnson  R.  Signal  Co.  v.  Signal  Co.  (C.  C.)  59  Fed.  20 157 

Johnston  v.  Berlin,  35  Misc.  Rep.  146,  71  N.  Y.  Supp.  454 465 

v.  Investment  Co.,  46  Neb.  480,  64  N.  W.  1100 187,  217 

49  Neb.  68,  68  N.  W.  383 67 

v.  Kershaw,  L.  R.  2  Ex.  82 400 

Jommen joy  Coondoo  v.  Watson,  9  App.  Gas.  561 168 

Jones  v.  Adler,  34  Md.  440 442,  446 

V.Atkinson.  68  Ala.  167 66,  76 

v.  Blocker,  43  Ga.  331 329 

v.  Hodgkins,    61    Me.    480 135,137 

V.Hope,  3  T.  L.  R.  247 375 

V.  Hoyt,  23  Conn.  157 417 

25  Conn.  374 456 

v.  Inness,  32  Kan.  177,  4  Pac.  95 229 

V.Jackson,   22  L.  T.  828 353 

V.  Johnson,  86  Ky.  530,  6  S.  W.  582 238 

v.  Le  Tombe,  3  Ball.  (U.  S.)  384,  1  L.  Ed.  647 355 

V.  Littledale,  6  Ad.  &  E.  486 360,  362,  363 

V.Marks,  47  Cal.  242 23 

v.  Morris,  61  Ala.  518 332 

v.  Peppercorne,  28  L.  J.  Ch.  158 469,  471 

Jordan  v.  Insurance  Co.,  1  Stork  (U.  S.)  342,  Fed.  Gas.  No.  7,524    42 

v.  James,  5  Ohio,  99 466 

Joseph  v.  Fisher,  122  Ind.  399,  23  N.  E.  856 148 

v.  Knox,  3  Camp.  320 387,  388,  391 

Josselyn  v.  McAllister,  22  Mich.  300 380 

Judah  v.  Dyott,  3  Blackf.  (Ind.)  324,  25  Am.  Dec.  112 434 

Judevine  v.  Town  of  Hardwick,  49  Vt.  180. . . .' 423 

Judson  v.  Gray,  11  N.  Y.  408,  411 181 

v.Sierra,    22   Tex.    365 148 

v.Sturges,  5  Day  (Conn.)  556 402 

K 

Kaltenbach  v.  Lewis,  10  App.  Gas.  617,  636 127 

Kanada  v.  North,   14  Mo.   615 424 

Kane  v.  Barstow,  42  Kan.  465,  22  Pac.  588,  16  Am.  St.  Rep.  490. .  209 
Kaulback  v.  Churchill,  59  N.  H.  296 .  366 


CASES  CITED.  633 

Page 
Kausal  v.  Insurance  Ass'n,  31  Minn.  17,  16  N.  W.  430,  47  Am. 

Rep.    776    218,  220 

Kaye  v.  Brett,  5  Ex.  269 209 

Kean  v.  Davis,  21  N.  J.  Law,  683,  47  Am.  Dec.  182 340,  341 

Keane  v.  Boycott,  2  H.  Bl.  511 329 

Kearney  v.  Glutton,  101  Mich.  106,  59  N.  W.  419,  45  Am.  St 

Rep.  394  380,  436 

Keay  v.  Fenwick,  1  C.  P.  D.  745 86,  110,  462,  463 

Keefe  v.  Sholl,  181  Pa.  90,  37  Atl.  116 287 

Keeler  v.  Salisbury,  33  N.  Y.  648 66 

Keershaw  v.  Kelsey,  100  Mass.  561 104 

Keidan  v.  Winegar,  95  Mich.  430,  54  N.  W.  901,  20  L.  R.  A.  705. .  340 
Keighler  v.  Manufacturing  Co.,  12  Md.  383,  71  Am.  Dec.  600. . 

416,  428 

Keighley  v.  Durant  (1901)  A.  C.  240 55 

Keim  v.  O'Reilly,  54  N.  J.  Eq.  418,  34  Atl.  1073 21,  64 

Keith  v.  Kellam  (C.  C.)  35  Fed.  243 418 

Kelchner  v.  Morris,  75  Mo.  App.  588 51 

Keller  v.  Phillips,  39  N.  Y.  351 40 

Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499 41 

v.  Railroad  Co.,  141  Mass.  496,  6  N.  E.  745 72,  73 

Kelly  v.  Bowennan,  113  Mich.  446,  71  N.  W.  836 159 

v.Brennan,  55  N.  J.  Eq.  423,  37  Atl.  137 134,  137 

V.Phelps,  57  Wis.  425,  15  N.  W.  385 71 

T.Thuey,  102  Mo.  522,  15  S.  W.  62 307 

143  Mo.  422,  45  S/W.  301 307 

Kelner  v.  Baxter,  L.  R.  2  C.  P.  174 56,  375 

Kelsey  v.  Bank,  69  Pa.  426 58,  59,  69 

Kernpner  v.  Rosenthal,  81  Tex.  12,  16  S.  W.  639 77 

Kendall  v.  Hamilton,  4  App.  Cas.  504,  515 238 

Kennebec  Co.  v.  Banking  Co.,  6  Gray  (Mass.)  204 113 

Kennedy  v.  Gouveia,  3  D.  &  R.  503 357,  358 

v.  McKay,  43  N.  J.  Law,  288,  39  Am.  Rep.  581 287 

Kent  v.  Borustein,  12  Allen  (Mass.)  342 394 

v.  Kent,  62  N.  Y.  560,  20  Am.  Rep.  502 30 

v.  Mining  Co.,  78  N.  Y.  159 70 

v.  Tyson,  20  N.  H.  121 32,  37 

Kenton  Ins.  Co.  v.  McClellan,  43  Mich.  564,  6  N.  W.  88 102 

Kepler  v.  Jessup,  11  Ind.  App.  241,  37  N.  E.  655 405,  409 

Kern's  Estate,  In  re,  176  Pa.  373,  35  Atl.  231 144,  197 

Kerr  v.  Cotton,  23  Tex.  411 400 

Ketchum  v.  Verdell,  42  Ga.  534 66,  243 


634  CASES   CITED. 

Page 

Key  v.  Insurance  Co.,  107  Iowa,  446,  78  N.  W.  68 61 

v.  Parnham,  6  Har.  &  J.  (Md.)  418 357 

Keyes  v.  Bradley,  73  Iowa,  589,  35  N.  W.  656 424 

v.  Inhabitants,   17  Pick.   (Mass.)  273 456 

Keyser  v.  Railroad,  66  Mich.  390,  33  N.  W.  867 254,  256 

Kidder  v.  Biddle,  13  Ind.  App.  653,  42  N.  E.  293 436 

Kiersted  v.  Orange,  69  N.  Y.  343,  25  Am.  Rep.  199 244 

Kiewert  v.  JRindskopf ,  46  Wis.  481,  1  N.  W.  163,  32  Am.  Rep.  731  425 

Kilgour  v.  Finlyson,  1  H.  BL  156 172 

Kimball  v.  Billings,  55  Me.  147,  92  Am.  Dec.  581 380 

Kimber  v.  Barber,  L.  R.  8  Ch.  56.. 423 

Kinder  v.  Shaw,  2  Mass.  397 223 

Kindig  v.  March,  15  Ind.  248 157,  162 

King  v.  Batterson,  13  R.  1.  117,  43  Am.  Rep.  13 306 

v.  Beeston,  3  T.  R.  592 114 

v.  Longnor,  4  B.  &  Ad.  647 21 

v.  Sparks,  77  Ga.  285,  1  S.  E.  266,  4  Am.  St.  Rep.  85 215 

Kingan  &  Co.  v.  Silvers,  13  Ind.  App.  80,  37  N.  E.  413 10 

Kingsley  v.  Davis,  104  Mass.  178 238 

v.  Siebrecht,  92  Me.  23,  42  Atl.  249,  69  Am.  St.  Rep.  486 233 

Kinloch  v.  Craig,  3  T.  R.  119,  783 467,  468,  476 

Kinsey  v.  Leggett,  71  N.  Y.  387 323 

Kinsman  v.  Kershaw,  119  Mass.  140. . , 209 

Kirk  v.  Hamilton,  102  U.  S.  68,  26  L.  Ed.  79 34 

v.  Hartman,  63  Pa.  97 140 

Kirklin  v.  Ass'n,  107  Ga.  313,  33  S.  E.  83 20 

Kirkpatrick  v.  Stainer,  22  Wend.  (N.  Y.)  244 181,  366 

Kirksey  v.  Jones,  7  Ala.  622 282 

Kirkstall  Brewery  Co.  v.  Railroad  Co.,  L.  R.  9  Q.  B.  468 251,  252 

Kirtland  v.  Montgomery,  1  Swan  (Tenn.)  452 413 

Kisterbock,  Appeal  of,  127  Pa.  601,  18  Atl.  381,  14  Am.  St.  Rep. 

868 293 

Klein  work  v.  Casa  Marrittima  Genoa,  2  App.  Cas.  156 42 

Kline  v.  Bank,  50  Kan.  91,  31  Pac.  688,  18  L.  R.  A.  533,  34  Am. 

St  Rep.  107 340 

Knapp,  In  re,  85  N.  Y.  284 467 

v.  Alvord,  10  Paige  (N.  Y.)  205,  40  Am.  Dec.  241 159,  466 

v.  Simon,  96  N.  Y.  284,  289 243 

v.  Smith,  27  N.  Y.  277 102 

Knauss  v.  Brewing  Co.,  142  N.  Y.  70,  36  N.  E.  867 420 

Knickerbocker  v.  Wilcox,  83  Mich.  200,  47  N.  W.  123,  21  Am. 
St.  Rep.  595 358,  359 


CASES  CITED.  535 

Page 
Knight  v.  Clark,  48  N.  J.  Law,  22,  2  Atl.  780,  57  Am.  Rep.  534. .  336 

v.  Lee,  [1893]  1  Q.  B.  41 .' 460 

Knox  v.  American  Co.,  148  N.  Y.  441,  42  N.  E.  988,  31  L.  R.  A. 

779,  51  Am.  St  Rep.  700 189,  294 

T.  Flack,  22  Pa.  337 94 

Komorowskl  v.  Krumdick,  56  Wis.  23,  13  N.  W.  881 211 

Kornemann  v.  Monaghan,  24  Mich.  36 L..  209 

Kozel  v.  Dearlove,  144  111.  23,  32  N.  E.  542,  36  Am.  St.  Rep.  416.  .30,  64 

Kraft  y.  Fancher,  44  Md.  204 177 

Kramer  v.  Winslow,  154  Pa.  637,  25  Atl.  766 423 

Krause  v.  Dorrance,  10  Pa.  462,  51  Am.  Dec.  496 433 

Kribben  v.  Haycraft,  26  Mo.  396 93 

Kroeger  v.  Pitcairn,  101  Pa.  311,  47  Am.  Rep.  718 370 

Kruger  v.  Wilcox,  Ambler,  252 466 

Krulevitz  v.  Railroad,  140  Mass.  573,  5  N.  E.  500 278 

Krumm  v.  Beach,  96  N.  Y.  398 288 

Krutz  v.  Fisher,  8  Kan.  90 422 

Kyte  v.  Assurance  Co.,  144  Mass.  43,  10  N.  E.  518 219 

L 

Lacey  v.  Hill,  L.  R.  18  Eq.  182 457 

Lacy  v.  Lumber  Co.,  43  Iowa,  510 345 

Ladd  v.  Grand  Isle,  67  Vt  172,  31  Atl.  34 35 

y.  Hildebrant,  27  Wis.  135,  9  Am.  Rep.  445 71 

La  Farge  v.  Kneeland,  7  Cow.  (N.  Y.)  456 376 

Laflin  &  Rand  Powder  Co.  v.  Sinsheimer,  48  Md.  411,  30  Am.  Rep. 

472    340,  353 

Lafond  v.  Deems,  81  N.  Y.  507 Ill 

Laing  v.  Butler,  37  Hun  (N.  Y.)  144 243 

v.  Nelson,  41  Minn.  521,  43  N.  W.  476 394 

Lake  v.  Campbell,  18  111.  106 21 

Lake  City  Flouring-Mill  Co.  v.  McVean,  32  Minn.  301,  20  N.  W. 

233 405 

Lakeman  v.  Pollard,  43  Me.  463,  69  Am.  Dec.  77 453 

Lake  Shore  &  M.  S.  R.  Co.  v.  Prentice,  147  U.  S.  101,  13  Sup.  Ct 

261,  37  L.  Ed.  97 275 

Lamb  v.  Attenborough,  1  B.  &  S.  831 319 

v.  Evans,  [1893]  2  Q.  B.  1 422 

v.  Thompson,  31  Neb.  448,  48  N.  W.  58 236 

Lamm  v.  Ass'n,  49  Md.  233,  33  Am.  Rep.  246 288 

Lamothe  v.  Dock  Co.,  17  Mo.  204 138 

Lampley  y.  Scott,  24  Miss.   528 411 


536  CASES   CITED. 

Page 

Lamson  &  Goodnow  Mfg.  Co.  v.  Russell,  112  Mass.  387 302 

Lancaster  v.  Ice  Co.,  153  Pa.  427,  26  Atl.  251 244 

Landwerlen  v.  Wheeler,  106  Ind.  526,  5  N.  E.  888 388 

Lane  v.  Black,  21  W.  Va.  619 82 

v.  Bryant,  9  Gray  (Mass.)  245,  69  Am.  Dec.  282 250 

v.  Corr,  156  Pa.  250,  25  Atl.  S30 370 

v.  Cotton,  12  Mod.  472 382 

v.  Lockridge's  Ex'x  (Ky.)  48  S.  W.  975 102 

v.  Railroad  Co.,  112  Mass.  455 251 

Langan  v.  Railroad  Co.,  32  L.  T.  (N.  S.)  173 44 

Langdon  v.  Potter,  13  Mass.  319 214 

Langhorn  v.  Allnutt,  4  Taunt.  511 256 

Langley  v.  Sturtevant,  7  Pick.  (Mass.)  214 429,  434 

Langridge  v.  Levy,  2  M.  &  W.  519 283 

Lanyon  v.  Blancbard,  2  Camp.  597 474 

Larkin  v.  Hapgood,  56  Vt.  597 378 

Larson  v.  Ass'n,  71  Minn.  101,  73  N.  W.  711 278 

La  Salle  Nat.  Bank  v.  Rock  &  Rye  Co.,  14  111.  App.  141 340 

Laussatt  v.  Lippincott,  6  Serg.  &  R.  (Pa.)  386,  9  Am.  Dec.  440 121 

Lavassar  v.  Washburne,  50  Wis.  200,  6  N.  W.  516 102 

Laverty  v.  Snethen,  68  N.  Y.  523,.  23  Am.  Rep.  184 401 

Law  v.  Cross,  1  Black.  (U.  S.)  533,  17  L.  Ed.  185 69 

v.  Stokes,  32  N.  J.  Law,  249,  90  Am.  Dec.  655 184,  209 

Lawrence  v.  Fletcher,  12  Ch.  D.  858 474 

v.  McArter,  10  Ohio,  37 95 

v.  Shipman,  39  Conn.  586 ,...  269 

v.  Taylor,  5  Hill  (N.  Y.)  107 82 

Lazard  v.  Transportation  Co.,  78  Md.  1,  26  Atl.  897 66 

Leach  v.  Railroad  Co.,  86  Mo.  27,  56  Am.  Rep.  408 424 

Leadbitter  v.  Farrow,  5  M.  &  S.  345 347 

Leake  v.  Sutherland,  25  Ark.  219 429 

Learn  v.  Upstill,  52  Neb.  271,  72  N.  W.  213 375 

Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641 450 

Leavitt  v.  Fisher,  4  Duer  (N.  Y.)  1 157 

v.  Sizer,  35  Neb.  80,  52  N.  W.  832 289 

Lebanon  Sav.  Bank  v.  Hollenbeck,  29  Minn.  322,  13  N.  W.  145. .  261 

Ledbetter  v.  Walker,  31  Ala.  175 23 

Lee  v.  Bayes,  18  C.  B.  599 381 

v.  Clements,  48  Ga.  128 455,  456 

V.  Morris,  3  Bush    (Ky.)  210 99 

v.  Munroe,  7  Cranch  (U.  S.)  366,  3  L.  Ed.  373 201 

v.  Vesey,  1  H.  &  N.  90 114 

v.  Walker,  L.  R.  7  C.  P.  121 406 


CASES   CITED.  537 

Page 

Lees  v.  Nuttall,  1  Russ.  &  M.  53,  2  Myl.  &  K.  819 420 

Leete  v.  Morton,  43  Coun.  219 445 

Legendre  v.  Byrnes,  44  N.  J.  Eq.  372,  14  Atl.  621 41S 

Lehigh  Coal  &  Navigation  Co.  v.  Mohr,  83  Pa.  228,  24  Am.  Rep. 

161    140 

Lehman  v.  Pritchett,  84  Ala.  512,  4  South.  601 400 

Leighton  v.  Sargent,  27  N.  H.  460,  59  Am.  Dec.  388 400 

Lemon  v.  Grosskopf,  22  Wis.  447,  99  Am.  Dec.  58 425 

Le  Neve  v.  Le  Neve,  1  Ves.  Sr.  64 258 

Lennard  v.  Robinson,  5  El.  &  B.  125 359 

Leonard  v.  Poole,  114  N.  Y.  371,  21  N.  E.  707,  4  L.  R.  A.  728,  11 

Am.  St.  Rep.  667 425 

Leopold  v.  Salkey,  89  111.  412,  31  Am.  Rep.  93 142,  452 

Lepard  v.  Vernon,  2  Ves.  &  B.  51 , 160 

Lerned  v.  Johns,  9  Allen  (Mass.)  419 233 

Le  Roy  v.  Beard,  8  How.  (U.  S.)  451,  468,  12  L.  Ed.  1151 170,  173 

Leu  v.  Mayer,  52  Kan.  419,  34  Pac.  969 257 

Leuthold  v.  Fairchild,  35  Minn.  99,  27  N.  W.  503,  28  N.  W.  218. .  380 

Levi  v.  Booth,  58  Md.  305,  42  Am.  Rep.  332 205,  310 

Levison  v.  Balfour  (C.  C.)  34  Fed.  382 400 

Levitt  v.  Hamblet,  [1901]  2  Q.  B.  53 230 

Levy  v.  Barnard,  2  Moore,  34 472 

Lewis  v.  Brehme,  33  Md.  412,  3  Am.  Rep.  190 437,  438 

v.  Com'rs,  12  Kan.  186 198 

v.  Coxe,  5  Har.  (Del.)  401 103 

v.  Ingersoll,  3  Abb.  Dec.  50 117,  118 

v.  Insurance  Co.,  61  Mo.  534 139,  140,  452 

v.  Kerr,  17  Iowa,  73 145 

•v.  Nicholson,  18  Q.  B.  503 369 

v.  Read,  13  M.  &  W.  834 47,  72,  73 

v.  Samuel,  8  Q.  B.  685 457 

v.  Sumner,  13  Mete.  (Mass.)  269 228 

v.  Tilton,  64  Iowa,  220,  19  N.  W.  911,  52  Am.  Rep.  436.  .111,  375 

v.  Trickey,  20  Barb.  (N.  Y.)  387 442 

Liddell  v.  Sahliue,  55  Ark.  627,  17  S.  W.  705 211 

Liebscher  v.  Kraus,  74  Wis.  387,  43  N.  W.  166,  5  L.  R.  A.  496,  17 

Am.  St.  Rep.  171 346 

Liesemer  v.  Burg,  106  Mich.  124,  63  N.  W.  999 436 

Liffkin  v.  Walker,  2  Camp.  308 245 

Lightcap  v.  Traction  Co.  (C.  C.)  60  Fed.  212 254 

Lilley  v.  Doubleday,  1  Q.  B.  D.  510 399 

Lillie  v.  Hoyt,  5  Hill  (N.  Y.)  395,  40  Am.  Dec.  360 431 

Lilly  v.  Smales,  [1892]  1  Q.  B.  456 372 


538  CASES  CITED. 

Page 

Limpus  y.  General  Omnibus  Co.,  1  H.  &  C.  526 269,  271,  273 

Lincoln  v.  Battelle,  6  Wend.  (N.  Y.)  475 462,  474 

v.  Emerson,  108  Mass.  87 144 

v.  McClatchie,  36  Conn.  136 446 

Lindeke  Land  Co.  v.  Levy,  76  Minn.  364,  79  N.  W.  314 234,  236 

Lindroth  v.  Litchfield  (C.  C.)  27  Fed.  894 65 

Lindus  v.  Bradwell,  5  C.  B.  583 354 

v.  Melrose,  2  H.  &  M.  293 343 

Lister  v.  Allen,  31  Md.  543,  100  Am.  Dec.  78 184,  190,  191,  195 

Litchenstein  v.  Brooks,  75  Tex.  196,  12  S.  W.  975 449 

Little  v.  Chadwick,  151  Mass.  109,  23  N.  E.  1005,  7  L.  R.  A.  570. .  326 

Littleton  v.  Ass'n,  97  Ga.  172,  25  S.  E.  826 197 

Livings  v.  Wiler,  32  111.  387 51 

Lloyd  v.  Sigourney,  5  Bing.  525 198 

Lobdell  v.  Baker,  1  Mete.  (Mass.)  193,  35  Am.  Dec.  358 

184,  190,  191,  225 

Locke  v.  Stearns,  1  Mete.  (Mass.)  560,  35  Am.  Dec.  382 287 

Lockett  v.  Baxter,  3  Wash.  T.  350,  19  Pac.  23 404 

Lockwood  v.  Coley  (C.  C.)  22  Fed.  192 340 

v.  Levick,  8  O.  B.  (N.  S.)  603 445,  446 

Loeschman  v.  Machin,  2  Stark.  311 319 

Lobnes  v.  Insurance  Co.,  121  Mass.  439 219 

London  Chartered  Bank  v.  White,  4  App.  Cas.  413 466 

London  Joint  S.  Bank  v.  Simmons,  [1892]  A.  C.  201 317 

London  &  S.  Bank,  In  re,  L.  R.  9  Eq.  149 448 

Long  v.  Colburn,  11  Mass.  97,  6  Am.  Dec.  160 20,  21,  342 

v.  Hartwell,  34  N.  J.  Law,  116 ..21,  23 

V.  Millar,  4  C.  P.  D.  450 361 

V.  Pool,  68  N.  C.  479 407 

v.  Poth,  16  Misc.  Rep.  85,  37  N.  Y.  Supp.  670 64,  75 

v.  Thayer,  150  U.  S.  520,  14  Sup.  Ct.  189,  37  L.  Ed.  1167.  .144,  145 

Loomis  v.  Railroad  Co.,  159  Mass.  39,  34  N.  E.  82 251 

v.  Simpson,  13  Iowa,  532 120,  126 

Loraine  v.  Cartwright,  3  Wash.  C.  0.  (U.  S.)  151,  Fed.  Cas.  No. 

8,500    404 

Lord  v.  Hall,  8  C.  B.  627 119 

2  C.  &  K.  698 119 

Lord  Audley  v.  Pollard,  Cro.  Eliz.  561 77 

Loring  v.  Mulcahy,  3  Allen  (Mass.)  575 381 

Lottman  v.  Barnett,  62  Mo.  159 383 

Lough  v.  John  Davis  &  Co.  (Wash.)  70  Pac.  491 384,  385 

Louisiana  Board  of  Trustees  for  Blind  v.  Dupuy,  31  La.  Ann.  305  427 

Louisiana  Nat.  Bank  v.  Laveille,  52  Mo.  380 , 200 


CASES  CITED.  539 

Page 

Louisville  Coffin  Co.  v.  Stokes,  78  Ala.  372 -. 217 

Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Buck,  116  Ind.  566,  19  N.  E.  453, 

2  L.  R.  A.  520,  9  Am.  St.  Rep.  883 254 

v.  Smith,  121  Ind.  353,  22  N.  E.  775,  6  L.  R.  A.  320 44 

Love  v.  Boss,  62  Ind.  255 423 

v.  Miller,  53  Ind.  294,  21  Am.  Rep.  192 445 

v.  Mining  Co.,  32  Cal.  639,  91  Am.  Dec.  602 336 

Low  v.  Railroad  Co.,  45  N.  H.  370 57 

46  N.  H.  284 65 

Lowell  Five  Cent  Sav.  Bank  v.  Inhabitants,  8  Allen  (Mass.)  109. .  199 
Lowenstein  v.  Lombard,  Ayres  &  Co.,  164  N.  Y.  324,  58  N.  E.  44. .  216 

Luby  v.  Railroad  Co.,  17  N.  Y.  131 250,  256 

Lucas  v.  Bank,  2  Stew.  (Ala.)  280 Ill 

v.  Dorrien,  7  Taunt.  278 469 

Luckie  v.  Johnston,  89  Ga.  321,  15  S.  E.  459 209,  212 

Ludgater  v.  Lowe,  44  L.  T.  (N.  S.)  694 296 

Ludwig  v.  Gillespie,  105  N.  Y.  653,  11  N.  E.  835 304,  387 

Lull  v.  Bank,  110  Iowa,  537,  81  N.  W.  784 362 

Lumley  v.  Gye,  2  El.  &  B.  216 329 

Lund  v.  Inhabitants,  9  Gush.  (Mass.)  36,  42 253 

Lupton  v.  White,  15  Ves.  432 429 

Lyell  v.  Kennedy,  14  App.  Cas.  437 57,  68,  78 

18  Q.  B.  D.  796 54,  77 

Lyman  v.  University,  28  Vt.  560 65 

Lynch  v.  Fallen,  11  R.  I.  311,  23  Am.  Rep.  458 419 

v.  Railroad  Co.,  90  N.  Y.  77,  43  Am.  Rep.  141 278 

v.  Smyth,  25  Colo.  103,  54  Pac.  634 47,  64,  70,  74 

v.  Trust  Co.  (C.  O.)  18  Fed.  486 287 

Lyndeborough  Glass  Co.  v.  Glass  Co.,  Ill  Mass.  315 59 

Lynn  v.  Burgoyne,  13  B.  Mon.  (Ky.)  400 117 

Lyon  v.  Jerome,  26  Wend.  (N.  Y.)  485,  37  Am.  Dec.  271 90,  119 

v.  Kent,  45  Ala.  656 105-107 

V.  Tarns,  11  Ark.  189 402,  411 

Y.  Williams,  5  Gray  (Mass.)  557 350 

M 

Maanss  v.  Henderson,  1  East  335 474 

McArthur  v.  Printing  Co.,  48  Minn.  319,  51  N.  W.  216,  31  Am.  St 

Rep.  653 57 

Macbeath  v.  Ellis,  4  Bing.  468 134 

Macbeth  v.  Haldemund,  1  T.  R.  172 367 

McBratney  v.  Chandler,  22  Kan.  692,  31  Am.  Rep.  213 459 


540  CASES   CITED. 

Page 
McCabe  v?  Goodfellow,  133  N.  Y.  89,  30  N.  E.  728,  17  L.  R.  A.  204  111 

McCan  v.  O'Ferrall,  8  Cl.  <&  F.  30 148 

McCants  v.  Wells,  3  S.  C.  569 127 

4  S.  O.  381 127 

McCarthy  v.  Guild,  12  Mete.  (Mass.)  291 328 

Macauley  v.  Elrod  (Ky.)  28  S.  W.  782 428 

McClay  v.  Hedge,  18  Iowa,  66 454 

McClellan  v.  Parker,  27  Mo.  162 362 

v.  Reynolds,  49  Mo.  312 340 

McClintock  v.  Oil  Co.,  14G  Pa.  144,  23  Atl.  211,  28  Am.  St.  Rep. 

785   83,  86 

McClun  v.  McClun,  176  111.  376,  52  N.  E.  928 99 

McClure  v.  Trust  Co.,  165  N.  Y.  108,  58  N.  E.  777,  53  L.  R.  A.  153  363 

McCollin  v.  Gilpin,  6  Q.  B.  D.  516 360 

MaComb  v.  Wilkinson,  83  Mich.  486,  47  N.  W.  336. 258 

T.  Wright,  4  Johns.  Ch.  (N.  Y.)  656 362 

4  Johns.  Ch.  (N.  Y.)  659 225 

McCombie  v.  Davies,  4  East,  7 472 

McConnell  v.  McCormick,  12  Cal.  142 462 

v.  Mackin,  22  App.  Div.  537,  48  N.  Y.  Supp.  18 119 

McCord  v.  Telegraph  Co.,  39  Minn.  181,  39  N.  W.  315,  1  L.  R.  A. 

143,  '12  Am.  St.  Rep.  636 294 

McCormick  v.  Joseph,  83  Ala.  401,  3  South.  796 260 

v.  Kelly,  28  Minn.  135,  9  N.  W.  675 207 

McCrachen  v.  San  Francisco,  16  Cal.  591 60 

McCracken  v.  San  Francisco,  16  Cal.  624 77 

McCrary  v.  Ruddick,  33  Iowa,  521 442 

McCready  v.  Thorn,  51  N.  Y.  454 42 

McCreary  v.  McCorkle  (Tenn.  Ch.  App.)  54  S.  W.  53 103 

McCullough  Iron  Co.  v.  Carpenter,  67  Md.  554,  11  Atl.  176 141 

McCurdy  v.  Rogers,  21  Wis.  199,  91  Am.  Dec.  468 369 

McDaniels  v.  Mfg.  Co.,  22  Vt.  274 334 

MacDonald  v.  Bond,  195  111.  122,  62  N.  E.  881 358 

v.  McCoy,  121  Cal.  55,  53  Pac.  421 55,  77 

McDowell  v.  Simpson,  3  Watts  (Pa.)  129,  27  Am.  Dec.  338 64 

McEwan  v.  Smith,  2  H.  L.  Cas.  309 320 

Macfarland  v.  Heim,  127  Mo.  327,  29  S.  W.  1030,  48  Am.  St.  Rep. 

529    59 

v.  McClees  (Pa.)  5  Atl.  50 406,  408 

McGar  v.  Adams,  65  Ala.  106 , 454,  455 

McGavock  v.  Woodlief,  20  How.  (U.  S.)  221,  15  L.  Ed.  884 446 

McGlassen  v.  Tyrrell  (Ariz.)  44  Pac.  1088 67 

McGoldrick  v.  Willits,  52  N.  Y.  612,  617 15 


CASES   CITED.  541 

Page 

McGraft  v.  Rugee,  60  Wis.  406,  19  N.  W.  530,  50  Am.  Rep.  378. .  466 

McGriff  v.  Porter,  5  Fla.  373. .' 157 

McHenry  v.  Ridgely,  2  Scam.  (111.)  309,  35  Am.  Dec.  110 351 

Machesney  v.  Brown  (C.  C.)  29  Fed.  145 244 

McHugh  v.  Schuylkill  Co.,  67  Pa.  391,  5  Am.  Rep.  445 50 

Mclntyre  v.  Park,  11  Gray  (Mass.)  102 ...    64 

Mclver  v.  Clarke,  69  Miss.  408,  10  South.  581 109 

Mackay  v.  Commercial  Bank,  L.  R.  5  P.  C.  394 284 

v.  Williams,  67  Mich.  547,  35  N.  W.  159,  11  Am.  St.  Rep.  597. .  417 
McKensey  v.  Edwards,  88  Ky.  272,  10  S.  W.  815,  3  L.  R.  A.  397, 

21  Am.  St.  Rep.  339 344 

Mackenzie  v.  British  Linen  Co.,  6  App.  Gas.  82 51,  54 

v.  Nevius,  22  Me.  138,  38  Am.  Dec.  291 427,  465,  474 

v.  Scott,  6  Bro.  P.  C.  280 437 

Mackersy  v.  Remsay,  9  Cl.  &  F.  818 129 

Mackey  v.  Briggs,  16  Colo.  143,  26  Pac.  131 362 

McKindly  v.  Dunham,  55  Wis.  515,  13  N.  W.  485,  42  Am.  Rep.  740  209 
Mackinley  v.  McGregor,  3  Whart.  (Pa.)  369,  31  Am.  Dec.  522..  106 
McKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800,  6  L.  R.  A.  121, 

17  Am.  St.  Rep.  178 119 

McKinstry  v.  Bank,  57  Kan.  279,  46  Pac.  302 66 

McLachlin  v.  Brett,  105  X.  Y.  391,  12  N.  E.  17 , 313,  314 

McLaren  v.  Hall,  26  Iowa,  297 102 

McLaughlin  v.  Simpson,  3  Stew.  &  P.  (Ala.)  85 407 

McLean  v.  Dunn,  4  Bing.  722 29,  64 

v.  Sezton,  44  App.  Div.  520,  60  N.  Y.  Supp.  871 239 

McLeod  v.  Evans,  66  Wis.  409,  28  N.  W.  173,  214,  57  Am.  Rep.  287  326 

McMaban  v.  McMahan,  13  Pa.  376,  53  Am.  Dec.  481 77 

McMahon  v.  McGraw,  26  Wis.  614 422 

McMillen  v.  Lee,  78  111.  443.... 41 

McMurtry  v.  Brown,  6  Neb.  368 21 

McNaughton  v.  Moore,  2  N.  C.  189 145 

McNeil  v.  Bank,  46  N.  Y.  325,  7  Am.  Rep.  341 205 

v.  Chamber  of  Commerce,  154  Mass.  277,  28  N.  E.  245,  13 

L.  R.  A.  559 114 

McNeile  v.  Crldland,  168  Pa.  16,  31  Atl.  939 285 

McNeilly  v.  Insurance  Co.,  66  N.  Y.  23 138 

McNevins  v.  Lowe,  40  111.  209 413 

McPherrin  v.  Jennings,  66  Iowa,  622,  24  N.  W.  242 248 

McPherson  v.  Cox,  96  U.  S.  404,  24  L.  Ed.  746 467 

v.  Watt,  3  App.  Cas.  254 418 

McPheters  v.  Page,  83  Me.  234,  22  Atl.  101,  23  Am.  St.  Rep.  772. .  380 
McReavy  v.  Eshelman,  4  Wash.  St.  757,  31  Pac.  35 373 


542  CASES  CITED. 

Page 

Me Whorter  v.  McMahan,  10  Paige  (N.  Y.)  386 , 21 

Madden  v.  Kempster,  1  Camp.  12 ' 468 

Maddox  v.  Bevan,  39  Md.  485 229 

Maddux  v.  Bevan,  39  Md.  485 66 

Magill  v.  Hinsdale.  6  Conn.  464a,  16  Am.  Dec.  70 333 

v.  Stoddard,  70  Wis.  75,  35  N.  W.  346 172 

Mahony  v.  Kekule,  14  C.  B.  390 181 

Maier  v.  Randolph,  33  Kan.  340,  6  Pac.  625 268,  281 

Maisenbacker  v.  Society  Concordia,  71  Conn.  369,  42  Atl.  67,  71 

Am.  St.  Rep.  213 275 

Maitland  v.  Martin,  86  Pa.  120 457 

Makepeace  v.  Rogers.  4  DeG.,  J.  &  S.  649 436 

Malcolm  v.  Scott,  5  Ex.  601 379 

Malleable  Iron  Works  v.  Insurance  Co.,  25  Conn.  465 218 

Mallough  v.  Barber,  4  Camp.  150 408 

Malone  v.  Robinson  (Miss.)  12  South.  709 217 

Man  v.  Shiffner,  2  East,  523,  529 472,  475 

Mandel  v.  Peet,  18  Ark.  236 81 

Mandeville  v.  Reynolds,  68  N.  Y.  528 228 

Mangum  v.  Ball,  43  Miss.  288,  5  Am.  Rep.  488 442 

Manhattan  Beach  Co.  v.  Harned  (C.  C.)  27  Fed.  484 293 

Manhattan  Life  Ins.  Co.  v.  Railroad  Co.,  139  N.  Y.  146,  34  N.  E. 

776   294 

Mann  v.  Bank,  34  Kan.  746,  10  Pac.  150 350 

v.  Chandler,  9  Mass.  335 343 

V.  Forrester,  4  Camp.  60 475 

4  Oowp.  60 465 

v.  Robinson,  19  W.  Va.  49,  42  Am.  Rep.  771 210 

Manning  v.  Gasharie,  27  Ind.  399 72,  190 

v.  Keenan,  73  N.  Y.  45 316 

Manser  v.  Back,  6  Hare,  443 136 

Mansfield  v.  Mansfield,  6  Conn.  559,  16  Am.  Dec.  76 157 

Manson  v.  Baillie,  2  Macq.  H.  L.  Gas.  80 442,  444 

Manufacturers'  Nat.  Bank  v.  Bank,  148  Mass.  553,  20  N.  E.  193,  2 

L.  R.  A.  699,  12  Am.  St.  Rep.  598 199 

Manufacturers'  &  Traders'  Bank  v.  Love,  13  App.  Div.  561,  43 

N.  Y.  Supp.  812 347 

Maple  v.  Railroad  Co.,  40  Ohio  St.  313,  48  Am.  Rep.  685 239 

Mare  v.  Charles,  5  El.  &  B.  978 352,  353 

Marfield  v.  Goodhue,  3  N.  Y.  62,  72 404,  409 

Marine  Bank  v.  Rushmore,  28  111.  463 430 

Marion  v.  Railroad  Co.,  64  Iowa,  568,  21  N.  W.  86 254 

Markey  v.  Insurance  Co.,  103  Mass.  78,  92 190 


CASES  CITED.  543 

Page 
Markham  T.  Jaudon,  41  N.  Y.  239 224 

Marquette  &  O.  R.  Co.  v.  Taft,  28  Mich.  289 43,  44 

Marr  v.  Plummet,  3  Greenl.  (Me.)  73 81 

Marsh  v.  Fulton  Co.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040 58 

v.  Jelf,  3  F.  &  F.  234 227 

V.  Mitchell,  26  N.  J.  Eq.  497,  501 251 

v.  Whitmore,  21  Wall.  (U.  S.)  178,  22  L.  Ed.  482 409,  418 

Marshall  v.  Rugg,  6  Wyo.  270,  44  Pac.  700,  45  Pac.  486,  33  L.  R. 

A.  679 23 

Martin  v.  Almond,  25  Mo.  313 334 

V.  Bliss,  57  Hun,  157,  10  N.  Y.  Supp.  886 455 

V.  Hickman,  64  Ark.  217,  41  S.  W.  852 67 

v.  Lemon,  26  Conn.  192 115 

T.  Moulton,  8  N.  H.  504 417 

V.  Roberts  (C.  C.)  36  Fed.  217 442,  444 

V.  Smith,  65  Miss.  1,  3  South.  33 340 

v.  Webb,  110  U.  S.  7,  3  Sup.  Ct.  428,  28  L.  Ed.  49 35,  37 

Martine  v.  Insurance  Co.,  53  N.  Y.  339,  13  Am.  Rep.  529 146 

Martini  v.  Coles,  1  M.  &  S.  140 223 

Marvin  v.  Brooks,  94  N.  Y.  71 436 

v.  Ellwood,  11  Paige  (N.  Y.)  365 424 

v.  Inglis,  39  How.  Prac.  (N.  Y.)  329 99 

Marwick  v.  Hardingham,  15  Ch.  D.  349 15 

Maryland  Fire  Ins.  Co.  v.  Dalrymple,  25  Md.  242,  89  Am.  Dec.  779  416 

Marzion  v.  Pioche,  8  Cal.  522 157 

Mason  v.  Clifton,  3  F.  &  F.  899 463 

V.Joseph,  1  Smith,  406 , 119 

v.  Roosevelt,  5  Johns.  Ch.  (N.  Y.)  534 434 

v.  Rumsey,  1  Camp.  384 354 

v.  Waite,  17  Mass.  560 315 

v.  Whitthorne,  2  Cold.  (Tenn.)  242 430 

Massachusetts  Life  Ins.  Co.  v.  Carpenter,  2  Sweeney  (N.  Y.)  734  430 

Massey  v.  Banner,  1  Jac.  &  W.  241 430 

Mast  v.  Easton,  33  Minn.  161,  22  N.  W.  253 431,  433 

Mather,  Ex  parte,  3  Ves.  373 461 

Mathews  v.  Mattress  Co.,  87  Iowa,  246,  54  N.  W.  225,  19  L.  R.  A. 

676    347 

Matteson  v.  Blackmer,  46  Mich.  393,  9  N.  W.  445 32 

Matthews  v.  Bank,  1  Holmes  (U.  S.)  396,  Fed.  Gas.  No.  9,286 221 

v.  Jenkins,  80  Va.  463 358 

v.  Light,  32  Me.  305 420,  422 

V.  Sowle,  12  Neb.  398,  11  N.  W.  857 173 


544  CASES  CITED. 

Page 

Matthiesson  &  Welchers  Refining  Co.  v.  McMahon,  38  N.  J.  Law, 

536    99,  146,  147 

Maury  v.  Ranger,  38  La.  Ann.  485,  58  Am.  Rep.  197 366 

Maxcy  Mfg.  Co.  v.  Burnham,  89  Me.  538,  36  Atl.  1003,  56  Am.  St. 

Rep.  436 102 

May  v.  Bliss,  22  Vt.  477 , 281 

v.  Telegraph  Co.,  112  Mass.  90 370 

Mayberry  v.  Railroad  Co.,  75  Mo.  492 43 

Maydew  v.  Forrester,  5  Taunt.  615 408 

Mayer  v.  Building  Co.,  104  Ala.  611,  16  South.  620,  28  L.  R.  A. 

433,  53  Am.  St.  Rep.  88 384 

v.  Dean,  115  N.  Y.  556,  22  N.  E.  261,  5  L.  R.  A.  540.  .286,  287,  296 
Mayhew  v.  Prince,  11  Mass.  54 344 

v.  Thayer,  8  Gray  (Mass.)  172 40 

Mayor  of  Baltimore  v.  Eschbach,  18  Md.  276,  282 201 

Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815 31 

Mayor  of  Salford  v.  Lever  (1891)  1  Q.  B.  168 327,  424 

Meader  v.  Page,  39  Vt.  306 32 

Meads  v.  Bank,  25  N.  Y.  143,  82  Am.  Dec.  331 200,  221 

Means  v.  Swormstedt,  32  Ind.  87,  2  Am.  Rep.  330 347 

Mechanics'  Bank  v.  Bank,  5  Wheat.  (U.  S.)  326,  5  L.  Ed.  100. . 

340,  345 

v.  Schaumburg,  38  Mo.  228 169,  216 

Mechanics'  &  Traders'  Bank  v.  Bank,  60  N.  Y.  40 394 

Meehan  v.  Forrester,  52  N.  Y.  277 74 

Meek  v.  Wend,  21  Q.  B.  D.  126 374 

Meeker  v.  Claghorn,  44  N.  Y.  349,  352 236,  361 

Meguire  v.  Corwine,  101  U.  S.  108,  25  L.  Ed.  899 93,  459 

Melledge  v.  Iron  Co.,  5  Gush.  (Mass.)  158,  51  Am.  Dec.  59 338 

Menkens  v.  Watson,  27  Mo.  163 87 

Mercantile  Mut.  Ins.  Co.  v.  Insurance  Co.,  8  Mo.  App.  408 419 

Merchants'  Bank  v.  Bank,  1  Ga.  418,  44  Am.  Dec.  665 215,  350 

v.  Rawls,  21  Ga.  289 431 

Merchants'  Nat.  Bank  v.  Bank,  10  Wall.   (U.  S.)  604,  646,  650, 

19  L.  Ed.  1008 200,  220,  221 

v.  Goodman,  109  Pa.  422,  2  Atl.  687,  58  Am.  Rep.  728 129 

v.  Hanson,  33  Minn.  40,  21  N.  W.  849,  53  Am.  Rep.  5 199 

Merrell  v.  Witherby,  120  Ala.  418,  23  South.  994,  26  South.  974, 

74  Am.  St.  Rep.  39 365 

Merrick  v.  Wagner,  44  111.  266 215 

Merrick's  Estate,  In  re,  8  Watts  &  S.  (Pa.)  402 146 

Merrill  v.  Bank,  19  Pick.   (Mass.)  32 325 

v.  Kenyon,  48  Conn.  314,  40  Am.  Rep.  174 238,  239 


CASES  CITED.  545 

Page 

Merrill  v.  Parker,  112  Mass.  250 62 

v.  Wilson,  66  Mich.  232,  33  N.  W.  716 68 

Merrin  v.  Lewis,  90  111.  505 146 

Merritt  v.  Bissell,  155  N.  Y.  396,  50  N.  E.  280 71 

v.  Merritt,  43  App.  Div.  68,  59  N.  Y.  Supp.  357 99 

Merry  v.  Lynch,  68  Me.  94 159 

Merryman  v.  David,  31  111.  404 423 

Merry  weather  v.  Moore  (1892)  2  Ch.  518 422 

v.  Nixan,  8  Term.  R.  186 461 

Metcalf  v.  McLaughlin,  122  Mass.  84 381 

v.  Williams,  104  U.  S.  93,  26  L.  Ed.  665 340,  341 

144  Mass.  452,  11  N.  E.  700 47 

Metropolitan  Nat.  Bank  v.  Commission  Co.  (C.  C.)  77  Fed.  705. .  326 

Meyer  v.  Hanchett,  39  Wis.  415 419 

43  Wis.  246 419 

v.  Insurance  Co.,  104  Cal.  381,  38  Pac.  82 256 

v.  King,  29  La.  Ann.  567 21 

v.  Stone,  46  Ark.  210,  5  Am.  Rep.  577 208 

Michael  v.  Jones,  84  Mo.  578 372 

Michigan  Carbon  Works  v.  Schad,  49  Hun,  605,  1  N.  Y.  Supp.  490  436 

Michigan  State  Bank  v.  Gardner,  15  Gray  (Mass.)  362 223 

Michigan  S.  &  N.  I.  R.  Co.  v.  Day,  20  111.  375,  71  Am.  Dec.  278. ..  175 

Michoud  v.  Girod,  4  How.  (U.  S.)  503,  555,  11  L.  Ed.  1076 416 

Milbank  v.  Dennistoun,  21  N.  Y.   386 403,  407 

Mildred  v.  Maspons,  8  App.  Cas.  874 310 

Miles  v.  Mays,  15  Colo.  133,  25  Pac.  312 462 

Millar  v.  Cuddy,  43  Mich.  273,  5  N.  W.  316,  38  Am.  Rep.  181 442 

Miller  v.  Bank,  30  Md.  392 428 

57  Minn.  319,  59  N.  W.  309 389 

V.  Board,  44  Cal.  166 72 

v.  Clark,  5  Lans.  (N.  Y.)  390 435 

T.  Early  (Ky.)  58  S.  W.  789 357 

v.  Goddard,  34  Me.  102,  56  Am.  Dec.  638 449,  453 

v.  Lea,  35  Md.  390.  406,  6  Am.  Dec.  417 311 

v.  Roach,  150  Mass.  140,  22  N.  E.  634,  6  L.  R.  A.  71 347 

v.  Staples,  3  Colo.  App.  93,  32  Pac.  81 383 

V.  Way,  5  S.  D.  468,  59  N.  W.  467 340 

Millikin  v.  Coombs,  1  Greenl.  (Me.)  343,  10  Am.  Dec,  70 63 

Mills  v.  Berla  (Tex.  Civ.  App.)  23  S.  W.  910 67 

v.  Mills,  40  N.  Y.  543,  100  Am.  Dec.  535 93 

Milne  v.  Kleb,  44  N.  J.  Eq.  378,  14  Atl.  646 , 196 

Milwaukee  &  W.  Inv.  Co.  v.  Johnston,  35  Neb.  554,  53  N.  W.  475  177 

Minett  v.  Forrester,  4  Taunt.  541 149 

TIFF.P.&  A.— 35 


546  CASES   CITED. 

Page 

Minnesota  Linseed  Oil  Co.  v.  Montague,  65  Iowa,  67,  21  N.  W. 

184    173,  404 

Minor  v.  Bank,  1  Pet.  (U.  S.)  46,  70,  7  L.  Ed.  47 221 

Minturn  v.  Main,  7  N.  Y.  220 389 

Misa  v.  Currie,  1  App.  Gas.  554. 471 

Miser  v.  Currie,  1  App.  Gas.  554. 46G 

Mitchell  v.  Ass'n,  48  Minn.  278,  51  N.  W.  608 54 

v.  Beck,  88  Mich.  342,  50  N.  W.  305 362 

v.  Crasweller,  13  C.  B.  237 270 

Mobile  Bank  v.  Huggins,  3  Ala.  206 407 

Mobile  &  M.  R.  Co.  v.  Jay,  65  Ala.  113 69 

Moff att  v.  Lawrie,  15  C.  B.  583 441,  444 

Mogler  v.  State,  47  Ark.  109,  14  S.  W.  473 301 

Mohr  v.  Miesen,  47  Minn.  228,  49  N.  W.  862 93,  460 

Moir  v.  Hopkins,  16  111.  313,  63  Am.  Dec.  312 268,  281 

Moley  v.  Brine,  120  Mass.  324 96 

Moline  Malleable  Iron  Co.  v.  Iron  Co.,  27  C.  C.  A.  442,  83  Fed. 

66    365,  389 

Molton  v.  Camroux,  2  Ex.  487,  4  Ex.  17 98 

Monk  v.  Whittenbury,  2  B.  &  Ad.  484 319 

Montagu  v.  Forwood  (1893)  2  Q.  B.  260 475 

Montague  v.  Forwood  (1893)  2  Q.  B.  351 311,  312 

v.  McCarroll,  15  Utah,  318,  49  Pac.  418 157 

Montaignac  v.  Shitta,  15  App.  Cas.  357 199 

Monte  Allegre,  The,  9  Wheat.  (U.  S.)  616,  644,  6  L.  Ed.  174 224 

Montgomery  v.  Insurance  Co.,  38  C.  C.  A.  553,  97  Fed.  913,  919. .  443 
Montgomery  Furniture  Co.  v.  Hardaway,  104  Ala.  100,  16  South. 

29    190 

Montrion  v.  Jeffrys,  2  C.  &  P.  113 409 

Moody  v.  Leverich,  4  Daly  (N.  Y.)  401 449,  450 

v.  Webster,  3  Pick.  (Mass.)  424 465 

Mooney  v.  Elder,  56  N.  Y.  238 446 

Moore  v.  Appleton,  26  Ala.  633 461 

v.  Ensley,  112  Ala.  228,  20  South.  744 73 

v.  Hall,  48  Mich.  145,  11  N.  W.  844 215 

v.  Lockett,  2  Bibb   (Ky.)  67,  4  Am.  Dec.  683 63 

V.  Robinson,  2  B.  &  Ad.  817 394 

V.  Shields,  121  Ind.  267,  23  N.  E.  89 378 

v.  Stone,  40  Iowa,  259 134 

Moores  v.  Bank,  111  U.  S.  156,  4  Sup.  Ct.  345,  28  L.  Ed.  385 293 

Moors  v.  Kidder,  106  N.  Y.  32,  12  N.  E.  818 322,  476 

Moran  v.  Dunphy,  177  Mass.  485,  59  N.  E.  125,  52  L.  R.  A.  115, 
83  Am.  St.  Rep.  289 .394 


GASES   CITED.  547 

Page 

Morell  v.  Codding,  4  Allen  (Mass.)  403 844 

Morgan  v.  East,  126  Ind.  42,  25  N.  E.  867,  9  L.  R.  A.  558 226 

v.   Elford,  4  Ch.  D.  352 423 

v.  Richardson,  13  Allen  (Mass.)  410 408 

Morier  v.  Railroad  Co.,  31  Minn.  351,  17  N.  W.  952,  47  Am.  Rep. 

793 271 

Morris  v.  Barnes,  35  Mo.  412 443 

v.  Bowen,  52  N.  H.  410 211 

v.  Cleasby,  1  M.  &  S.  576,  579 389 

4  M.  &  S.  566 437 

v.  Salberg,  22  Q.  B.  D.  614 282 

v.  Watson,  15  Minn.  212  (Gil  165) 168 

Morrison  v.  Thompson,  L.  R.  9  Q.  B.  480 422,  424 

Morrow  v.  Higgins,  29  Ala.  448 23 

Morse  v.  Railroad  Co.,  6  Gray  (Mass.)  450 251 

v.   State,   6  Conn.  9 298 

Mortimer  v.  Wright,  6  M.  &  W.  482 41 

Morton  v.  Dean,  13  Mete.   (Mass.)  385 225 

v.  Rainey,  82  111.  215,  25  Am.  Rep.  311 443 

Moss  v.  Livingston,  4  N.  Y.  209 353 

v.  Mining  Co.,  5  Hill,  137 66 

Motley  v.  Head,  43  Vt  633 147 

v.  Motley,  42  N.  C.  211 455 

Mott  v.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550 350 

v.  Smith,  16  Cal.  533 103 

Moulton  v.  Bowker,  115  Mass.  36,  15  Am.  Rep.  72 228 

Mount  City  Mut.  Life  Ins.  Co.  v.  Huth,  49  Ala.  530 58 

Mountf  ord  v.  Scott,  3  Mad.  34 260 

1  Turn.  &  R.  274 260 

Mt.  Morris  Bank  v.  Gorham,  169  Mass.  519,  48  N.  E.  341 35,  198 

Mowatt  v.  McLelan,  1  Wend.  (N.  Y.)  173 376 

Moyer  v.  Cantieny,  41  Minn.  242,  42  N.  W.  1060 93 

Mudgett  v.  Day,  12  Cal.  139 -. .  214 

Mull  v.   Ingalls,  62  N.  Y.   Supp.  830 311 

Mullen  v.  Keetzleb,  7  Bush    (Ky.)  253 419 

Mullens  v.  Miller,  22  Ch.  D.  194 303 

Muller  v.  Pondir,  55  N.  Y.  325,  14  Am.  Rep.  259 476 

Mulligan  v.  Railroad  Co.,  129  N.  Y.  506,  29  N.  E.  952,  14  L.  R. 

A.  791,  26  Am.  St  Rep.  539 273,  278,  279 

Mullins  v.  Miller,  22  Ch.  D.  194 176 

Mulvehill  v.  Bates,  31  Minn.  364,  17  N.  W.  959,  47  Am.  Rep.  796  277 

Mundorff  v.  Wickersham,  63  Pa.  87,  3  Am.  Rep.  531 303 


548  CASES  CITED. 

Page 
Munn  y.  Commission  Co.,  15  Johns.  (N.  Y.)  44,  8  Am.  Dec.  219. .  190 

v.  Joliffe,  1  M.  &  R.  326 210 

Murdoch  v.  Milner,  84  Mo.  96 422 

Murdock  v.  Mills,  11  Mete.  (Mass.)  5 195 

Murphy  v.  Caralli,  3  H.  &  C.  462 269 

Murray  v.  Beard,  102  N.  Y.  505,  7  N.  E.  553 455 

v.  Brooks,  41  Iowa,  45 208 

v.  Currie,  L.  R.  6  C.  P.  24 269 

v.  Lumber  Co.,  143  Mass.  250,  9  N.  E.  634 74 

v.  Mann,  2  Ex.  538 425 

v.  Usher,  117  N.  Y.  542,  23  N.  E.  564 384 

v.  Vanderbilt,  39  Barb.  (N.  Y.)  140 424 

Murrey  v.  Kelso,  10  Wash.  47,  38  Pac.  879 280 

Mussey  v.  Beecher,  3  Cush.  (Mass.)  511 199,  256 

v.  Scott,  7  Cush.  (Mass.)  215,  54  Am.  Dec.  719. 333 

Mutual  Ben.  Life  Ins.  Co.  v.  Brown,  30  N.  J.  Eq.  193 21 

v.  Robison,  7  C.  C.  A.  444,  58  Fed.  723,  22  L.  R.  A.  325 220 

Myers  v.  Insurance  Co.,  32  Hun  (N.  Y.)  321 71 

v.  Knabe,  51  Kan.  720,  33  Pac.  602 98 

Myler  v.  Fitzpatrick,  6  Madd.  360 427 

Mynn  Y.  Joliffe,  1  M.  &  Rob.  326 175 

N 

Nagle  v.  McFeeters,  97  N.  Y.  196 466 

Naltner  v.  Dolan,  108  Ind.  500,  8  N.  E.  289,  58  Am.  Rep.  61 430 

Nash  v.  Mitchell,  71  N.  Y.  199,  27  Am.  Rep.  38 102 

v.  Mosher,  19  Wend.  (N.  Y.)  431 472 

National  Bank  v.  Bank,  50  C.  C.  A.  443,  112  Fed.  726 175 

v.  Norton,  1  Hill  (N.  Y.)  572 267 

National  Bank  of  Commerce  v.  Railroad  Co.,  44  Minn.  224,  46 

N.  W.  342,  560,  9  L.  R.  A.  263,  20  Am.  St.  Rep.  566 200,  201 

National  Bank  of  Rising  Sun  v.  Seward,  106  Ind.  264,  6  N.  E.  635  424 
National  Bank  of  the  Republic  v.  Bank,  50  C.  C.  A.  443,  112 

Fed.  726  131,  214,  427 

National  Butchers'  &  Drovers'  Bank  v.  Hubbell,  117  N.  Y.  384, 

22  N.  E.  1031,  7  L.  R.  A.  852,  15  Am.  St.  Rep.  515 199 

National  Coffee  Palace  Co.,  In  re,  24  Ch.  D.  367 370,  374 

National  Exchange  Co.  v.  Drew,  2  Macq.  103 296 

National  Furnace  Co.  v.  Manfg.  Co.,  110  111.  427 217 

National  Imp.  &  Const.  Co.  v.  Maiken,  103  Iowa,  118,  72  N. 

W.  431  66 


CASES  CITED.  541) 

Page 
National  Life  Ins.  Co.  v.  Allen,  116  Mass.  398 308 

v.  Minch,  53  N.  Y.  144 263 

National  Merc.  Bank  v.  Rymill,  44  L.  T.  (N.  S.)  767 381 

National  Security  Bank  v.  Cushman,  121  Mass.  490 267 

National  S.  S.  Co.  v.  Sheahan,  122  N.  Y.  461,  25  N.  E.  858,  10  L. 

R.  A.  782 126 

Nave  v.  Bank,  87  Ind.  204 351 

Navulshaw  v.  Brownrigg,  2  DeG.,  M.  &  G.  441 436 

1  Sim.  N.  S.  573 321 

Neibles  v.  Railroad  Co.,  37  Minn.  151,  33  N.  W.  322 32 

Neilson  v.  James,  9  Q.  B.  D.  546 407 

Nelson  v.  Albridge,  2  Starkie,  435 210,  227 

v.  Cook,  17  111.  443 461 

v.  Cowing,  6  Hill  (N.  Y.)  336 207,  208 

v.  McDonald,  80  Wis.  605,  50  N.  W.  893,  27  Am.  St.  Rep. 

71   26,  27 

v.  Powell,  3  Doug.  410 238 

Nesbit  v.  Lockman,  34  N.  Y.  167 418 

Neufeld  v.  Beidler,  37  111.  App.  34 336 

Nevin  v.  Spieckemann   (Pa.)  4  Atl.  497 385 

Newall  v.  Tomlinson,  L.  R.  6  C.  P.  405 377 

Newell  v.   Smith,  49  Vt.  255 119 

New  England  Marine  Ins.  Co.  v.  De  Wolf,  8  Pick.  (Mass.)  56....  357 
Newhall  v.  Dunlap,  14  Me.  180,  31  Am.  Dec.  45 473 

v.  Vargas,  13  Me.  93,  29  Am.  Dec.  489 476 

New  Haven,  M.  &  W.  R.  Co.  v.  Chatham,  42  Conn.  465 266 

New  Jersey  Steam  Nav.  Co.  v.  Bank,  6  How.  (U.  S.)  344,  380, 

12  L.  Ed.  465 304 

Newman  v.  Reagan,  65  Ga.  512 142 

v.  Sylvester,  42  Ind.  106 372 

New  Market  Sav.  Bank  v.  Gillett,  100  111.  254,  39  Am.  Rep.  39. .  343 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Bailey,  40  Miss.  395,  452,  453. .  275 

Newsom  v.  Thornton,  6  East,  17 476 

Newton  v.  Bronson,  13  N.  Y.  587,  67  Am.  Dec.  89 90 

New  York  Cent.  Ins.  Co.  v.  Insurance  Co.,  14  N.  Y.  85 416,  418 

v.  Lock  wood,  17  Wall.  (U.  S.)  357,  21  L.  Ed.  627 412 

New  York  Iron  Mine  Co.  v.  Bank,  44  Mich.  344,  6  N.  W.  823 215 

New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425,  24  L.  Ed.  453 

104,  149-151 

v.  Fletcher,  117  U.  S.  519,  6  Sup.  Ct.  837,  29  L.  Ed.  934 219 

v.  Statham,  93  U.  S.  24,  23  L.  Ed.  789 149 

New  York  Security  &  Trust  Co.  v.  Lipman,  157  N.  Y.  551,  52 
N.    E.    595 .  321 


550  CASES   CITED. 

Page 

New  fork  &  O.  S.  S.  Co.  v.  Harbison  (D.  C.)  16  Fed.  681 201 

(C.  C.)  16  Fed.  691 201 

New  York  &  N.  H.  R.  Co.  v.  Schuyler,  34  N.  Y.  30 199,  291,  292 

New  Zealand  &  A.  L.  Co.  v.  Watson,  7  Q.  B.  D.  374 126,  127,  427 

Nicholas  v.  Oliver,  36  N.  H.  218 352 

Nichols  v.  Diamond,  9  Ex.  154 353 

v.  Frothingham,  45  Me.  220,  71  Am.  Dec.  539 350,  351 

v.  Haines,  39  C.  C.  A.  235,  98  Fed.  692 23 

v.  Mudgett,  32  Vt.  546 93 

Nicholson,   In  re,  53  L.  J.   Ch.  302 . 473 

v.  Chapman,  2  H.  Bl.  254 122 

v.  Knowles,  5  Mad.  47 424 

Nickalls  v.  Merry,  L,.  B.  7  H.  L.  530 178 

Nickerson  v.  Darrow,  5  Allen  (Mass.)  419 320 

Nicol  v.  Marlyn,  2  Esp.  734 329 

Nicoll  v.  Burke,  78  N.  Y.  580 304 

Nims  v.  Boys'  School,  160  Mass.  177,  35  N.  E.  776,  22  L.  R.  A. 

364,  39  Am.  St.  Rep.  467 47,  279 

Nixon  v.  Brown,  57  N.  H.  34 205 

v.  Downey,  49  Iowa,  166 363 

v.  Palmer,  8  N.  Y.  398 198,  216 

Noble  v.  Leary,  37  Ind.  186 432 

Noecker  v.  People,  91  111.  494 301 

Noice  v.  Brown,  39  N.  J.  Law,  569 329 

Nolte  v.  Hulbert,  37  Ohio  St.  445 419 

Nonotuck  Silk  Co.  v.  Flanders,  87  Wis.  237,  58  N.  W.  383 326 

Norris  v.  Cook,  1  Curt.  (U.  S.)  464,  Fed.  Gas.  No.  10,305 69 

v.  Hero,  22  La.  Ann.  605 430 

Northern  P.  R.  Co.  v.  Kindred  (C.  C.)  14  Fed.  77..... 422,  423 

North  Hudson  Co.  R.  Co.  v.  May,  48  N.  J.  Law,  401,  5  Atl.  276. .  256 
North  Missouri  R.  Co.  v.  Stephens,  36  Mo.  150,  88  Am.  Dec.  138. .  228 

North  River  Bank  v.  Aymar,  3  Hill  (N.  Y.)  262 169,  199,  216 

Northumberland  Ave.  Hotel  Co.,  In  re,  33  Ch.  D.  16 56 

Northwestern  Distilling  Co.  v.  Brant,  69  111.  658,  18  Am.  Rep. 

631    334,  335 

Northwestern  Union  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528, 

22  L.   Ed.  406 248,  249,  252 

Norton  v.  Bank,  102  Ala.  420,  14  South.  872 77 

v.  Blinn,  39  Ohio  St.  145 425 

v.  Cowell,  65  Md.  359,  4  Atl.  408,  57  Am.  Rep.  331 141 

v.  Herron,  1  C.  &  P.  648 357 

Norwich  University  v.  Denny,  47  Vt  13 119 


CASES   CITED.  551 

Page 

Noyes  v.  Landon,  59  Vt.  569,  10  Atl.  342 420 

v.  Loring,  55  Me.  408 369,  370 

Nunnelly  v.  Goodwin  (Tenn.  Ch.  App.)  39  8.  W.  855 185 

Nye  v.  Swan,  49  Minn.  431,  52  N.  W.  39 61 

0 

Oakes  v.  Water  Co.,  143  N.  T.  430,  38  N.  B.  461,  26  L.  R.  A.  544    56 

O'Barr  v.  Alexander,  37  Ga.  195 .409 

Oberne  v.  Burke,  30  Neb.  581,  46  N.  W.  838,  839 184,  202,  211 

O'Connor  v.  Clopton,  60  Miss.  349 376 

v.  Railroad  Co.,  27  Minn.  166,  6  N.  W.  481,  38  Am.  Rep.  288  254 

Odessa  Tramways  Co.  v.  Mendel,  8  Ch.  D.  235 229 

Odiorne  v.  Maxcy,  15  Mass.  39 33 

Oelricks  v.  Ford,  23  How.  (U.  S,)  49,  16  L.  Ed.  534 366 

Ogden  v.  Hall,  40  L.  T.  (N.  S.)  751 357,  366 

v.  Marchand,  29  La.  Ann.  61 66 

Obio  Nat  Bank  v.  Cook,  38  Ohio  St.  442 348 

Ohio  &  M.  R.  Co.  v.  Stein,  133  Ind.  243,  31  N.  E.  180,  32  N.  B. 

831,  19  L.  R.  A.  733 253-255 

Ohlquest  v.  Farwell,  71  Iowa,  231,  32  N.  W.  277 228 

Okell  v.  Charles,  34  L.  T.  822 353 

Olcott  v.  Little,  9  N.  H.  259,  32  Am.  Dec.  357 342 

v.  Railroad  Co.,  27  N.  T.  546,  560,  84  Am.  Dec.  298 33 

Oldhams  v.  Jones,  5  B.  Mon.  (Ky.)  458 422 

Oliver  v.  Bank  (1902)  1  Ch.  210 370 

(1902)  1  Ch.  610 371,  373 

v.  Court,  Dan.  301 417 

Olmstead  v.  Beale,  19  Pick.  (Mass.)  528 453 

Olyphant  v.  McNair,  41  Barb.  (N.  Y.)  446 212 

Omaha  &  R.  V.  R.  Co.  v.  Chollette,  41  Neb.  578,  59  N.  W.  921. .  254 

Oom  v.  Bruce,  12  East,  224 393 

Opie  v.  Serrill,  6  Watts  &  S.  (Pa.)  264 402 

Ord  v.  McKee,  5  Cal.  515 349 

Oregon  &  W.  Mortg.   Sav.  Bank  v.  Mortgage   Co.   (C.   C.)  35 

Fed.  22   141,  154 

Orr  v.  Ward,  73  m.  318 141 

Orton  v.  Scofleld,  61  Wls.  382,  21  N.  W.  261 419 

Orvis  v.  Wells,  Fargo  &  Co.,  19  C.  C.  A.  382,  73  Fed.  110 66 

Osborn  v.  Governors  of  Guy's  Hospital,  2  Str.  728 443 

Osborn  Co.  v.  Jordan,  52  Neb.  465,  72  N.  W.  479 68 

Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437 383,  384 

Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539 92,  459 


552  CASES  CITED. 

Page 

Osier  v.  Hobbs,  33  Ark.  215 444 

Quids  v.  Sansom,  3  Taunt  261 101 

Over  v.  Schiffling,  102  Ind.  191,  26  N.  E.  91 248 

Overman  v.  Atkinson,  102  Ga.  750,  29  S.  E.  758 21 

Owen  v.  Brockschmidt,  54  Mo.  285 211 

v.  Cronk  (1895)  1  Q.  B.  265 378 

v.  Gooch,  2  Esp.  567 181,  361,  362 

Owens,  In  re,  I.  R.  7  Eq.  235 454,  455 

Ovdngs  v.  Hull,  9  Pet.  (U.  S.)  607,  9  L.  Ed.  246 72 

Owsley  v.  Phillips,  78  Ky.  517,  39  Am.  Rep.  258 51 

Oxford  v.  Crowe  (1893)  3  Ch.  535 63 

V.  McFarland,  3  Ind.  156 443 

P 

Pace  v.  Walker,  L.  R.  5  Ex.  173 357 

Pacific  Bank  v.  Hannah,  32  C.  C.  A.  522,  90  Fed.  72 144 

Pack  v.  White,  78  Ky.  243 344 

Packet,  The,  3  Mason  (U.  S.)  255,  Fed.  Cas.  No.  10,654 42 

Padfield  v.  Green,  85  111.  529 214 

Padwlck  v.  Hurst,  18  Beav.  575 463 

v.   Stanley,  9  Hare,  627 436,  463 

Page  v.  Methfessel,  71  Hun,  442,  25  N.  Y.  Supp.  11 34 

v.  Webb  (Ky.)  5  S.  W.  308 422 

v.  Wells,  37  Mich.  415 405 

Paice  v.  Walker,  L.  R.  5  Ex.  173 358 

Paige  v.  Stone,  10  Mete.  (Mass.)  160,  43  Am.  Dec.  420.  .215,  239,  365 

Paine  v.  Tucker,  21  Me.  138,  38  Am.  Dec.  255 21 

Palacios  v.  Brasher,  18  Colo.  593,  34  Pac.  251,  36  Am.  St.  Rep.  305    25 

Palethorp  v.  Furnish,  2  Esp.  511 251 

Palliser  v.  Ord,  Bunbury,  166 117 

Palmer  v.  Cheney,  35  Iowa,  281 58,  190 

v.  Hatch,  46  Mo.  585 208 

v.  Inhabitants,  98  Mass.  483 444 

v.  Mill  Co.,  32  Mich.  274 141 

Palmer!  v.  Railroad  Co.,  133  N.  Y.  261,  30  N.  E.  1001,  16  L.  R. 

A.  136,  28  Am.  St  Rep.  632 273,  278,  279 

Palmerton  v.  Huxford,  4  Denio  (N.  Y.)  166 65 

Panama  TeL  Co.  v.  Railroad  Co.,  L.  R.  10  Ch.  515 229,  327 

Parcell  v.  McComber,  11  Neb.  209,  7  N.  W.  529,  38  Am.  Rep.  366  454 

Park  v.  Cross,  76  Minn.  187,  78  N.  W.  1107,  77  Am.  SL  Rep.  630  214 

y.  Hamond,  4  Camp.  344 406,  408 


CASES   CITED.  553 

Pare 

Parker  v.  Brancker,  22  Pick.  (Mass.)  40 404 

v.  McKenna,   L.   R.  10  Ch.  96 422,  423 

v.  Smith,  16  East,  382 149 

v.  Vose,  45  Me.  54 417 

v.  Walker,  86  Term.  566,  8  S.  W.  391 446 

v.  Winslow,  7  El.  &  B.  942 358 

Park  Hotel  Co.  v.  Bank,  30  C.  C.  A.  409,  86  Fed.  742 197 

Parkist  v.  Alexander,  1  Johns.  Ch.  (N.  Y.)  394 420 

Parks  v.  Ross,  11  How.  (U.  S.)  362,  13  L.  Ed.  730 367 

Parmelee  v.  Simpson,  5  Wall.  (U.  S.)  81,  18  L.  Ed.  542 77 

Parsons  v.  Martin,  11  Gray  (Mass.)  112 397 

v.  Thompson,  14  Bl.  322 459 

Parton  v.  Crofts,  16  B.  C.  (N.  S.)  11 225 

Partridge  v.  White,  59  Me.  564 68 

Paschal,  In  re,  10  Wall.  (U.  S.)  483,  19  L.  Ed.  992 467 

Passano  v.  Acosta,  4  La.  26,  23  Am.  Dec.  470 19,  402 

Paterson  v.  Gandesqui,  15  East,  62 364,  36(5 

v.  Tash,  Str.  1178 223 

Patten  v.  Patten,  75  111.  446 102 

v.  Rea,  2  C.  B.  (N.  S.)  606 277 

Patterson  v.  Donner,  48  Cal.  369 93 

v.  Gandesqui,  9  B.  &  C.  78 238 

V.  Lippincott,  47  N.  J.  Law,  457,  1  Atl.  506,  54  Am.  Rep. 

178   96,  370,  371 

Patrick  v.  Bowman,  149  U.  S.  411,  13  Sup.  Ct.  811,  37  L.  Ed.  790  367 

v.  Putnam,  27  Vt.  759 453 

Paul   v.   Grimm,   165   Pa.   139,   30   Atl.   721,   44   Am.   St.    Rep. 

648    398,  436 

Pavy's  Pat.  P.  F.  Co.,  In  re,  1  Ch.  D.  631 471 

Paxton  Cattle  Co.  v.  Bank,  21  Neb.  621,  33  N.  W.  271,  59  Am. 

Rep.  852  57 

Payne  v.  Leconfield,  51  L.  J.  Q.  B.  642 208,  227 

v.  Potter,  9  Iowa,  549 207 

v.  Smith,  12  N.  H.  34 81 

Peabody  v.  Hoard,  46  111.  242 21,  198 

Peacock  v.  Peacock,  2  Camp.  45 442 

Peak  v.  Ellicott,  30  Kan.  156,  1  Pac.  499,  46  Am.  Rep.  90 326 

Pearse  v.  Green,  1  Jac.  &  W.  135 428,  430,  435 

Pearsoll  v.  Chapin,  44  Pa.  9 47 

Pearson  v.  Mason,  120  Mass.  53 445 

Pease  v.  Pease,  35  Conn.  131,  95  Am.  Dec.  225 245,  338 

Peck  v.  Harriott,  6  Serg.  &  B.  (Pa.)  146,  9  Am.  Dec.  415.  .175,  210 
Peckham  v.  Lyon,  4  McLean  (U.  S.)  45,  Fed.  Cas.  No.  10,899. .  212 


554  CASES  CITED. 

Page 

Peebles  v.  Guano  Co..  77  N.  C.  233,  24  Am.  Rep.  447 287 

Peine  v.  Weber,  47  111.  45 64 

Peisch  v.  Dickson,  1  Mason  (U.  S.)  9,  Fed.  Gas.  No.  10,911 472 

Pelham  v.  Hilder  (1841)  1  Y.  &  C.  3 177,  178,  207 

Pelton  v.  Baker,  158  Mass.  349,  33  N.  E.  394 387 

Penfold  v.  Warner,  96  Mich.  179,  55  N.  W.  680,  35  Am.  St 

Rep.  591  169 

Pennoyer  v.  Willis,  26  Or.  1,  36  Pac.  568,  46  Am.  St.  Rep.  594.  .261,  263 

Pennsylvania  R.  Co.  v.  Atha  (D.  C.)  22  Fed.  920 37 

Pentz  v.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558 

239,  245,  347 

People  v.  Blake,  52  Mich.  566,  18  N.  W.  360 301 

v.  Board,  11  Mich.  222 416,  417 

v.  Parks,  49  Mich.  333,  13  N.  W.  618 301 

v.  Roby,  52  Mich.  577,  18  N.  W.  365,  50  Am.  Rep.  270 301 

v.  Welch,  71  Mich.  548,  39  N.  W.  747,  1  L.  R.  A.  385 301 

Percival  v.  Frempton,  2  C.,  M.  &  R.  180 ,466 

Peries  v.  Aycinena,  3  Watts  &  S.  (Pa.)  64 146 

Perkins  v.  Boothby,  71  Me.  91 66,  218 

v.  Cady,  111  Mass.  318 239 

v.  Evans,  61  Iowa,  35,  15  N.  W.  584 327 

v.  Smith,  1  Wils.  328 380 

Perminter  v.  Kelly,  18  Ala.  716,  54  Am.  Dec.  177 89 

Perry  v.  Barnett,  15  Q.  B.  Div.  460 164 

v.  Mfg.  Co.,  40  Conn.  313,  317 251 

v   Smith,  29  N.  J.  Law,  74 21 

Persons  v.  McKibben,  5  Ind.  261,  61  Am.  Dec.  85 81 

Peters  v.  Bain.  133  U.  S.  670,  10  Sup.  Ct.  534,  33  L.  Ed.  696 326 

v.  Farnsworth,  15  Vt.  155,  40  Am.  Dec.  671 170 

Peterson  v.  Christensen,  26  Minn.  377,  4  N.  W.  623 118 

v.  New  York,  17  N.  Y.  449 31 

v.  Homan,  44  Minn.  166,  46  N.  W.  303,  20  Am.  St.  Rep.  564  361 

v.  Mayer,  46  Minn.  468,  49  N.  W.  245,  13  L.  R.  A,  72 453 

v.  Poignard,  8  B.  Mon.  (Ky.)  309 428 

Peto  v.  Hague,  5  Esp.  134 249 

Pfister  v.  Wade,  69  Cal.  133,  10  Pac.  369 228 

Phelon  v.  Stiles,  43  Conn.  426 272 

Phelps  v.  James,  86  Iowa,  398,  53  N.  W.  274,  41  Am.  St.  Rep.  497  250 

v.  Sullivan,  140  Mass.  36,  2  N.  E.  121,  54  Am.  Rep.  442 25 

v.  Wair,  30  N.  Y.  78 383 

Philadelphia  Nat  Bank  v.  Dowd  (C.  C.)  38  Fed.  172,  2  L.  R. 
A.  480  .  .  326 


CASES   CITED.  555 

Pace 
Philadelphia,  W.  &  B.  R.  Co.  v.  Co  well,  28  Pa.  329,  70  Am.  Dec. 

128    70,  71 

v.  Larkin,  47  Md.  155,  28  Am.  Rep.  442 275 

v.  Quigley,  21  How.  (U.  S.)  202,  16  L.  Ed.  73 278 

Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How.  (U.  S.)  468,  14  L. 

Ed.   502    272,  410,  412 

Phillips  v.  Dobbins,  56  Ga.  617 228 

v.  Huth,  6  M.  &  W.  572 318 

V.  Moir,  69  HI.  155 408 

v.  Phillips,  9  Hare,  474 436 

v.  Scott,  43  Mo.  86,  97  Am.  Dec.  369 404 

v.  Wiginton,  1  Ad.  &  E.  333 449 

Philpot  v.  Bingham,  55  Ala.  439 95 

Phoenix  Ins.  Co.  v.  Frissell,  142  Mass.  513,  8  N.  E.  348 399 

Phoenix  Mut  Life  Ins.  Co.  v.  Holloway,  51  Conn.  311,  50  Am.  Rep. 

21    , 142 

Phosphate  of  Lime  Co.  v.  Green,  L.  R.  7  O.  P.  43 73,  74 

Pickard  v.  Perley,  45  N.  H.  188,  86  Am.  Dec.  153 80 

v.  Sears,  6  Ad.  &  E.  469 34,  38 

Pickering  v.  Busk,  15  East,  38 205,  224 

v.  Pickering,  6  N.  H.  124 106 

Pickert  v.  Hair,  146  Mass.  1,  15  N.  B.  79 251 

v.  Marston,  68  Wis.  465,  32  N.  W.  550,  60  Am.  Rep.  876. ... 

177,  178,  207 

Pickett  v.  Pearsons,  17  Vt  470 87,  404 

Pierce  v.  Johnson,  34  Conn.  274 362 

v.  Railroad  Co.,  173  U.  S.  1,  19  Sup.  Ct  335,  43  L.  Ed.  591. . 

449,  450 

Pierpont  v.  Wilson,  49  Conn.  450 40 

Pike  v.  Balch,  38  Me.  302,  61  Am.  Dec  248 42 

v.  Emerson,  5  N.  H.  393,  22  Am.  Dec.  468 228 

v.  Ongley,  18  Q.  B.  D.  708 361 

v.  Quigley,  18  Q.  B.  D.  708 360 

Pilot  v.  Craze,  52  J.  P.  311 37 

Pinckney  v.  Dunn,  2  S.  C.  314 430 

Pine  Mountain  Iron  &  Coal  Co.  v.  Bailey,  36  C.  C.  A.  229,  94  Fed. 

258    264 

Pinto  v.  Santos,  5  Taunt.  447 427 

Pitkin  v.  Harris,  69  Mich.  133,  37  N.  W.  61 214 

Pitney  v.  Insurance  Co.,  65  N.  Y.  6 219 

Pitts  v.  Mower,  18  Me.  361,  36  Am.  Dec.  727 310 

Planters'  &  Farmers'  Nat  Bank  v.  Bank,  75  N.  O.  534 120 

Plimmer  v.  Sells,  1  N.  &  M.  422 106 


£561  CASES  CITED. 

Page 

Poillon  v.  Martin,  1  Sandf.  Ch.  (N.  Y.)  569 417 

Pole  v.  Leask,  28  Beav.  562,  29  L.  J.  Ch.  888 172,  175 

33  L.  J.  (N.  S.)  Ch.  155,  161 15,  32,  35,  138,  195 

Polk  v.  Force,  12  Q.  B.  666 459 

Pollacek  v.  Scholl,  51  App.  Div.  319,  64  N.  ¥.  Supp.  979 309 

Pollard  v.  Gibbs,  55  Ga.  45 63,  64 

v.  Vinton,  105  U.  S.  7,  26  L.  Ed.  998 200 

Pollock  v.  Cohen,  32  Ohio  St.  514 77,  171 

v.  Stables,  12  Q.  B.  765 177,  178 

Pooley  v.  Driver,  5  Ch.  D.  458 Ill 

Pope  v.  Bank,  57  N.  Y.  126 198 

v.  J.  K.  Armsby  Co.,  Ill  Cal.  159,  43  Pac.  589 74 

v.  Nickerson,  3  Story  (U.  S.)  465,  Fed.  Gas.  No.  11,274 42 

v.  Westcott  (1894)  1  Q.  B.  272 ' 398,  400 

Porter  v.  Haley,  55  Miss,  66,  30  Am.  Rep.  502 102 

v.  Silvers,  35  Ind.  295 455 

Portuguese  Consolidated  Copper  Mines,  In  re,  45  Ch.  Div.  16.  .84,  85 

Post  v.  Pearson,  108  U.  S.  418,  2  Sup.  Ct  799,  27  L.  Ed.  774 359 

Posten  v.  Rassette,  5  Cal.  467 157 

Pothill  v.  Walker,  3  B.  &  Ad.  114 353,  370 

Potts  v.  Rider,  3  Ohio,  70,  17  Am.  Dec.  581 387 

Poulton  v.  London  &  S.  W.  Ry.  Co.,  L.  R.  2  Q.  B.  534 273,  278 

Powell  v.  State,  27  Ala.  51 105 

v.  Trustees,  19  Johns.  (N.  Y.)  284 457 

Power  v.  Bank,  6  Mont.  251,  12  Pac.  597 129,  130 

Powers  v.  Briggs,  79  111.  493,  22  Am.  Rep.  175 343 

v.  Cray,  7  Ga.  206 437 

Pownall  v.  Bair,  78  Pa.  403 427 

Pratt  v.  Beaupre,  13  Minn.  187  (Gil.  177) 360 

v.  Collins,  20  Hun  (N.  Y.)  126 311 

v.  Reed,  19  How.  (U.  S.)  359,  361,  15  L.  Ed.  660 42 

Prentice  Co.  v.  Page,  164  Mass.  276,  41  N.  E.  279 320 

Prescott  v.  Webster,  175  Mass.  316,  56  N.  E.  577 40 

Preston  v.  Hill,  50  Cal.  43,  19  Am.  Rep.  647 229 

v.  Hull,  23  Grat.  (Va.)  500,  14  Am.  Rep.  153 24 

v.  Prather,  137  U.  S.  604,  11  Sup.  Ct  162,  34  L.  Ed.  788. ...  412 
Prestwick  v.  Marshall,  7  Bing.  565 106 

v.  Poley,  18  0.  B.  (N.  S.)  806 229 

Price  v.  Insurance  Co.,  43  Wis.  267 321,  322 

v.  Taylor,  5  H.  &  N.  540 345,  347 

Prichard  v.  Bidd,  22  C.  C.  A,  504,  76  Fed.  710 304 

Prickett  v.  Badger,  1  O.  B.  (N.  S.)  296 449 

Priestlie  v.  Fernie,  3  H.  &  C.  977 238 


CASES   CITED.  557 

Page 

Prince  T.  Clark,  2  D.  &  R.  268 09 

Proctor  v.  Railroad  Co.,  154  Mass.  251,  28  N.  B.  13 248 

Protection  Life  Ins.  Co.  v.  Foote,  79  I1L  361 104 

Proudfoot  v.  Wightman,  78  111.  553 21 

Providence  Tool  Co.  v.  Norris,  2  WalL  (U.  S.)  45,  17  L.  Ed.  868. . 

92,  93,  459 

Pundmann  v.  Schoenich,  144  Mo.  149,  45  S.  W.  1112 326 

Pursley  v.  Morrison,  7  Ind.  356,  63  Am.  Dec.  424 36 

Putnam  v.  French,  53  Vt  402,  38  Am.  Rep.  682 184,  206,  209 

Pyle  v.  Cravens,  4  Litt  (Ky.)  17 95 

Q 

Quarman  v.  Burnett,  6  M.  &  W.  499 269 

Quebec  &  R.  R.  Co.  v.  Quinn,  12  Mo.  P.  C.  232 120 

Queen  of  Spain  v.  Parr,  39  L.  J.  Ch.  73 451 

Quinlan  v.  Insurance  Co.,  133  N.  Y.  356,  31  N.  E.  31,  28  Am.  St 

Rep.  645 198,  219 

Quinn,  Ex  parte,  53  L.  J.  Ch.  302 473 

v.  Dresbach,  75  Gal.  159,  16  Pac.  762,  7  Am.  St.  Rep.  138. . 

35,  36,  212 
v.  Gross,  24  Or.  147,  33  Pac.  535 434 

R 

Rabone  v.  Williams  (1785)  7  T.  R.  360 309,  310 

Railton  v.  Hodgson,  15  East,  67 367 

Rainbow,  The,  5  Asp.  M.  C.  479 472 

Raisin  v.  Clark,  41  Md.  168,  20  Am.  Rep.  66 419 

Rait  v.  Mitchell,  14  Camp.  146 470 

Raleigh  v.  Anderson,  6  M.  &  W.  670  (1830) 161 

Ramazotti  v.  Bowring,  7  C.  B.  (N.  S.)  851 310 

Rames  v.  Machin,  Noy.  130 95 

Randall  v.  Kehlor,  60  Me.  37,  11  Am.  Rep.  169 207,  208,  223 

Randell  v.  Trimen,  18  C.  B.  786 370,  374 

Rankin  v.  Eakin,  3  Head  (Tenn.)  229 168 

Rann  v.  Hughes,  7  T.  R.  350 28 

Ranney  v.  Donovan,  78  Mich.  318,  44  N.  W.  276 419 

Rathbun  v.  Snow,  123  N.  Y.  343,  25  N.  E.  379,  10  L.  R.  A.  355. . 

184,  195 

Rawlings  v.  Neal,  126  N.  C.  271,  35  S.  E.  597 54,  59 

v.  Robson,  70  Ga.  595 342 

Ray  v.  Powers,  134  Mass.  22 112 


558  GASES   CITED. 

Page 

Raymond  v.  Orown  &  Eagle  Mills,  2  Mete.  (Mass.)  319 238,  239 

v.  Squire,  11  Johns.  (N.  Y.)  46 159 

Rayner  v.  Grote,  15  M.  &  W.  359 392 

Read  v.  Anderson,  10  Q.  B.  D.  100 164,  165 

13  Q.  B.  D.  779,  781 164,  460 

v.  Legard,  6  Ex.  636 41,  99 

v.  Rann,  10  B.  &  C.  438 443,  448 

Rechtscherd  v.  Bank,  47  Mo.  181 397 

Reding  v.  Anderson,  72  Iowa,  498,  34  N.  W.  300 375 

Redmond  v.  Coffin,  17  N.  C.  437 333 

Reed  v.  Bank,  130  Mass.  443,  39  Am.  Rep.  468 278 

V.  Morton,  24  Neb.  760.  40.  N.  W.  282,  1  L.  R.  A.  736,  8  Am. 

St.    Rep.   247 63 

V.  Norris,  2  Myl.  &  C.  361 420 

V.  Northrup,  50  Mich.  442,  15  N.  W.  543 408 

v.  Peterson,  91  111.  288 382 

Rees  v.  Fellow,  38  C.  C.  A.  94,  97  Fed.  167 136,  137 

Reese  v.  Bates,  94  Va.  321,  26  S.  E.  865 207 

v.  Medlock,  27  Tex.  120,  123,  84  Am.  Dec.  611 172,  198 

Reeve  v.  Bank,  54  N.  J.  Law,  208,  23  Atl.  853,  16  L.  R.  A.  143, 

33  Am.  St.  Rep.  675., ....346,  347 

v.  Reeve,  1  F.  &  F.  280 441 

Reeves  v.  Bank,  8  Ohio  St.  465 129 

Reg.  v.  Justices,  L.  R.  8  Q.  B.  305 „ 21,  91 

v.  Stephens,  L.  R.  1  Q.  B.  702 300 

v.  Woodward,  9  Cox,  C.  C.  95 298 

Reid  v.  Hibbard,  6  Wis.  175 65 

v.  Humber,  49  Ga.  207 ' 383 

Reilly  v.  Phillips,  4  S.  D.  604,  57  N.  W.  780 158,  159 

Reisan  v.  Mott,  42  Minn.  49,  43  N.  W.  691,  18  Am.  St.  Rep.  489. .  264 

Remelee  v.  Hall,  31  Vt.  582,  76  Am.  Dec.  140 449 

Remsden  v.  Dyson,  L.  R.  1  H.  L.  129.  '. 34 

Rendell  v.  Harriman,  75  Me.  497,  46  Am.  Rep.  421 339,  348 

Renfro  v.  Waco  (Tex.  Civ.  App.)  33  S.  W.  766 146 

Renwick  v.  Bancroft,  56  Iowa,  527,  9  N.  W.  367 119 

Rex  v.  Almon,  5  Burrows,  2686 298,  299 

v.  Dixon,  3  M.  &  S.  11 300 

V.  Gutch,  Moody  &  M.  433 299 

v.  Medley,  6  Car.  &  P.  292 300 

v.  Walter,  3  Esp.  21 299 

Reynall  v.  Lewis,  15  M.  &  W.  517 34 

Reynolds  v.  Collins,  78  Ala.  94 32 

v.  Davison,  34  Md.  662 66 


CASES   CITED.  559 

Page 

Reynolds  T.  Rogers,  63  Mo.  17 401 

v.  Rowley,  2  La.  Ann    890 •. 148 

Rhea  v.  Puryear,  26  Ark.  344 420 

Rhoades  v.  Blackiston,  106  Mass.  334,  8  Am.  Rep.  332 388 

Bhoda  v.  Annis,  75  Me.  17,  46  Am.  Rep.  354 , 287 

Rhodes  v.  Forwood,  1  App.  Cas.  256 140 

Rhone  v.  Powell,  20  Colo.  41,  36  Pac.  899 361 

Bice  v.  Chute,  1  East,  579 367 

v.  Groffmann,  56  Mo.  434 223 

v.  Grove,  22  Pick.  (Mass.)  158,  33  Am.  Dec.  724 342 

v.  McLarren,  42  Me.  157 63 

T.  Peninsular  Club,  52  Mich.  87,  17  N.  W.  708 195 

v.  Wood,  113  Mass.  133,  18  Am.  Rep.  459 93,  419 

Bice  &  Bullen  Malting  Co.  v.  Bank,  185  111.  422,  56  N.  B.  1063. .  310 

Rich  v.  Bank,  7  Neb.  201,  29  Am.  Rep.  382 65 

Bichardson  v.  Kimball,  28  Me.  463 89 

v.  Payne,  114  Mass.  429 56 

v.  Williamson,  L.  R.  6  Q.  B.  276 370 

Richey  v.  Brown,  58  Mich.  435,  25  N.  W.  386 110 

Ridder  v.  Whitlock,  12  How.  Prac.  (N.  Y.)  208 436 

Ridgeway  v.  Ludlam,  7  N.  J.  Eq.  123 455 

Riehl  v.  Association,  104  Ind.  70,  3  N.  E.  636 325 

Riggan  v.  Grain,  86  Ky.  249,  5  S.  W.  561 63 

Right  v.  Cuthell,  5  East,  491 80 

Riley  v.   Minor,  29  Mo.  439 ,     21 

Rimmer  v.  Knowles,  30  L.  T.  496,  22  W.  R.  574 445 

Ringo  v.  Binns,  10  Pet.  (U.  S.)  269,  9  L.  Ed.  420 421 

Ripley  v.  Case,  86  Mich.  261,  49  S.  W.  46 289 

v.  Gelston,  9  Johns.  (N.  Y.)  201,  6  Am.  Dec.  271 378 

Rippe  v.  Stogdill,  61  Wis.  38,  20  N.  W.  645 436 

Ritch  v.  Smith,  82  N.  Y.  627 214 

Ritchie  v.  Waller,  63  Conn.  155,  28  Atl.  29,  27  L.  R.  A.  161,  38 

Am.  St.  Rep.  361 271 

Roach  v.  Turk,  9  Helsk.  (Tenn.)  708,  24  Am.  Rep.  360 380 

Bobbins  v.  Fennell,  11  Q.  B.  248 427 

v.  Robbins  (N.  J.  Ch.)  3  Atl.  264 428 

Boberts  v.  Button,  14  Vt.  195 369 

v.  Insurance  Co.,  90  Wis.  210,  62  N.  W.  1049 257 

v.  Noyes,  76  Me.  590 424 

v.  Ogilby,  9  Price,  269 18 

v.  Rockbottom  Co.,  7  Mete.  (Mass.)  46 30 

v.  Rumley,  58  Iowa,  301,  12  N.  W.  323 75 

V.  Smith,  5  M.  &  W.  114 441 


560  CASES  CITED. 

Pace 
Robertson  v.  Chapman,  152  TJ.  S.  673,  11  Sup.  Ct  741,  38  L.  Ed. 

592   417 

v.  Cloud,  47  Miss.  208 137 

v.  Fauntleroy,  8  Moore,  10 379 

v.  Woodward,  3  Rich.  Law  (S.  C.)  251 424 

Robins  v.  Bridge,  3  M.  &  W.  114 181 

Robinson  v.  Anderson,  106  Ind.  152,  6  N.  B.  12 214 

v.  Bank,  86  N.  Y.  404 214 

44  Ohio  St.  441,  8  N.  E.  583,  58  Am.  Rep.  829 339,  353 

v.  Bird,  158  Mass.  357,  33  N.  E.  391,  35  Am.  St.  Rep.  495. .  380 

T.  Davison,  L.  R.  6  Ex.  269 452 

v.  Green,  5  Har.  (Del.)  115 32 

v.  Iron  Co.,  39  Hun  (N.  Y.)  634 176 

v.  Mollett,  L.  R.  7  H.  L.  802 178,  397,  417 

V.  Rutter.  4  El.  &  B.  954 390,  465 

v.  Stewart,  97  Mich.  454,  56  N.  W.  853 436 

v.  Webb,  11  Bush    (Ky.)  464 394 

v.  Yarrow,  7  Taunt.  455 202 

Robinson  Machine  Works  v.  Vorse,  52  Iowa,  207,  2  N.  W.  1108. .  397 
Robinson  Mercantile  Co.  v.  Thompson,  74  Miss.  847,  21  South.  794  197 

Robson  v.  Kemp,  4  Esp.  233 471 

Robt  v.  Green  (1895)  2  Q.  B.  1 422 

Roby  v.  Cossitt,  78  111.  638. .' 54 

Roca  v.  Byrne,  145  N.  Y.  182,  39  N.  E.  812,  45  Am.  St.  Rep.  599. .  324 

Roche  v.  Pennington,  90  Wis.  107,  62  N.  W.  946 195,  216,  217 

Rochester  v.  Levering,  104  Ind.  562,  4  N.  W.  203 418,  455 

Rocker  v.  Busher,  1  Stark.  27 42 

Rockford  Ins.  Co.  v.  Nelson,  65  111.  415 190 

Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Wilcox,  66  111.  417 31,  32 

Rockwell  v.  Taylor,  41  Conn.  55,  59 253 

Rodriguez  v.  Hefferman,  5  Johns.  Ch.  (N.  Y.)  417 223 

Roe  v.  Pierce,  2  Camp.  96 80 

Roehl  v.  Haumesser,  114  Ind.  311,  15  N.  E.  345 29 

Rogers  v.  Boehm,  2  Esp.  703 435 

v.  Greenwood,  14  Minn.  333  (Gil.  256) 228 

v.  March,  33  Me.  106 357,  359,  366 

v.  Turner,  59  Mo.  116 41 

Rollins  v.  Phelps,  5  Minn.  463  (Gil.  373) 113 

Roosevelt  v.  Doherty,  129  Mass.  301,  37  Am.  Rep.  356 306 

Rooth  v.  Wilson,  1  B.  &  Aid.  59 394 

Rose  v.  Hayden,  35  Kan.  106,  10  Pac.  554,  57  Am.  Rep.  145.  .420,  421 

Rosenbaum  v.  Hayes,  8  N.  D.  461,  79  N.  W.  987 472 

Rosenstock  v.  Tormey,  32  Md.  169,  3  Am.  Rep.  125 120,  224,  456 


CASES  CITED.  561 

Page 

Rosa  v.  Madison,  1  Ind.  281,  48  Am.  Dec.  361 31 

Rosser  v.  Darden,  82  Ga.  219,  7  S.  E.  919,  14  Am.  St.  Rep.  152. .  310 
Rossiter  v.  Ass'n,  27  Beav.  377,  381 119,  120 

v.  Rossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  62 

168,  171,  190,  215 

Rottman  v.  Wasson,   5  Kan.  552 21 

Rounds  v.  Railroad  Co.,  64  N.  Y.  129,  21  Am.  Rep.  597.  ...272,  273 

Routh  v.  Thompson,  13  East,  274 83 

Rowe  v.  Rand,  111  Ind.  206,  12  N.  E.  377 138,  144 

v.  Ware,  30  Ga.  278 21 

Rowell  v.  Klein,  44  Ind.  290,  15  Am.  Rep.  235 102 

v.  Oleson,  32  Minn.  288,  20  N.  W.  227 361 

Royce  v.  Allen,  28  Vt.  234 362 

Ruckman  -v.  Bergholz.  38  N.  J.  Law,  531 442 

Rudd  v.  Matthews,  79  Ky.  479,  42  Am.  Rep.  231 54 

Ruff ner  v.  Hewitt,  7  W.  Va.  585 456 

Ruggles  v.  Insurance  Co.,  114  N.  Y.  415,  21  N.  E.  1000,  11  Am. 

St.  Rep.  674 219 

Rumbull  v.  Bank,  2  Q.  B.  D.  194 317 

Rumsey  v.  Briggs,  139  N.  Y.  323,  34  N.  E.  929 338 

Rupp  v.  Sampson,  16  Gray   (Mass.)  398,  77  Am.  Dec.  416 419 

Russell  v.  Church,  6f>  Pa.  9 432 

v.  Folsom,  72  Me.  436. 1 352 

v.  Hankey,  6  T.  R.  12 .' 398 

Ruthven  v.  Insurance  Co.,  92  Iowa,  316,  60  N.  W.  663 117 

Ryan  v.  Tudor,  31   Kan.  366,  2  Pac.  797 215 

Ryder  v.  Thayer,  3  La.  Ann.  149 407 

S 

Sadler  v.  Henlock,  4  E.  &  B.  570 269 

v.  Leigh.  4  Camp.  195 304,  305,  389 

Sage  v.  Lumber  Co.,  4  App.  Div.  290,  39  N.  Y.  Supp.  449 323 

158  N.  Y.  672,  52  N.  E.  1126 323 

St  Andrews  Bay  Land  Co.  v.  Mitchell,  4  Fla.  192,  54  Am.  Dec. 

340    104 

St.  John  v.  Redmond,  9  Port.  (Ala.)  428 169 

St.  Johnsbury  &  L.  C.  R.  Oo.  v.  Hunt,  55  Vt.  570,  45  Am.  Rep.  639  328 
St.  Louis,  A.  &  T.  R.  Co.  v.  Hoover,  53  Ark.  377,  13  S.  W.  1092. .     44 

St  Louis,  K.  C.  &  N.  R.  Co.  v.  Thacher,  13  Kan.  564 300 

St.  Louis  &  I.  M.  R.  Co.  v.  Lamed,  103  111.  293 200 

St.  Louis  &  M.  Packet  Co.  v.  Parker,  59  111.  23 37 

TIFF.P.&  A.— 36 


662  CASES   CITED. 

Page 
St.  Louis  &  S.  F.  R.  Co.  v.  Weaver,  35  Kan.  412,  11  Pac.  408,  57 

Am.   Rep.   176 256 

St.  Paul  Fire  &  Marine  Ins.  Oo.  v.  Parsons,  47  Minn.  352,  50  N. 

W.  240   262 

Saladin  v.  Mitchell,  45  111.  79 224 

Salisbury  v.  Brisbane,  61  N.  Y.  617 113,  146 

Salmon  v.  Richardson,  30  Conn.  360,  79  Am.  Dec.  255 382 

Salter  v.  Howard,  43  Ga.  601 329 

Salt  Lake  City  v.  Hollister,  118  U.  S.  256,  6  Sup.  Ct  1055,  30 

L.  Ed.  176   278 

Saltus  v.  Everett,  20  Wend.  (N.  Y.)  267,  32  Am.  Dec.  541 204 

Sampson  v.  Iron  Works,  6  Gray  (Mass.)  120 455 

Samuels  v.  Oliver,  130  111.  73,  22  N.  E.  499 459 

Sanborn  v.  Neal,  4  Minn.  126  (Gil.  83),  77  Am.  Dec.  502 355 

Sanders  v.  Peck,  30  C.  C.  A.  530,  87  Fed.  61 65,  76 

Sanderson  v.  Griffith,  5  B.  &  C.  909 55 

Sandford  v.  Handy,  23  Wend.  (N.  Y.)  260 176,  303 

Sanford  v.  Johnson,  24  Minn.  172 102 

v.  Lancaster,  81  Me.  434,  17  Atl.  402 434 

Sandf oss  v.  Jones,  35  Cal.  481 421 

Sands  v.  Child,  3  Lev.  351,  352 380 

Sanger  v.  Dun,  47  Wis.  615,  3  N.  W.  388,  32  Am.  Rep.  789 132 

v.  Warren,  91  Tex.  472,  44  S.  W.  477,  66  Am.  St.  Rep.  913. ...  244 
Santa  Clara  Min.  Ass'n  v.  Meredith,  49  Md.  389,  33  Am.  Rep.  264    31 

Sargeant  v.  Clark,  108  Pa.  588 228 

Sarjeant  v.  Blunt,  16  Johns.  (N.  Y.)  74 400,  401 

Saunderson  v.  Man,  1  H.  Bl.  75 94 

Saveland  v.  Green,  36  Wis.  612 457 

40  Wis.  431 69,  71 

Savings  Bank  v.  Davis,  8  Conn.  191 31 

Sawyer  v.  Lorillard,  48  Ala.  332 467,  472 

v.  Mayhew,  51  Me.  398 399 

v.  Tappan,  14  N.  H.  352 434 

Sax  v.  Davis,  71  Iowa,  406,  32  N.  W.  403 256 

v.  Drake,  69  Iowa,  760,  28  N.  W.  423. 34 

Sayre  v.  Nichols,  7  Cal.  535,  68  Am.  Dec.  280 117,  119 

Scaling  v.  Knolling,  94  111.  App.  443 311 

Scanlan  v.  Keith,  102  111.  634,  40  Am.  Rep.  624 339,  347 

Schack  v.  Anthony,  1  M.  &  S.  573 244 

Schaefer  v.  Henkel,  75  N.  Y.  378 308 

Schendel  v.  Stevenson,  153  Mass.  351,  26  N.  E.  689 236 

Schenk  v.  Dexter,  77  Minn.  15,  79  N.  W.  526 213 

Schimmelpennich  v.  Bayard,  1  Pet.  (U.  S.)  264,  7  L.  Ed.  138 195 


CASES  CITED.  563 

Page 

Schlntz  v.  McManamy,  33  WIs.  299 25 

Schisler  v.  Null,  91  Mich.  321,  51  N.  W.  900 435 

Schlater  v.  Winpenny,  75  Pa.  321 138 

Schmaling  v.  Tomlinson,  6  Taunt.   147 462 

Schmaltz  v.  Avery,  16  Q.  B.  655 236,  307,  392 

Schnehardt  v.  Aliens,  1  Wall.  (U.  S.)  359,  17  L.  Ed.  642 223 

Schoch  v.  Anthony,  1  M.  &  S.  573 308 

School  Dist.  No.  6  v.  Insurance  Co.,  62  Me.  330 62 

Schools  of  Village  of  Cahokia  v.  Rautenberg,  88  111.  219 355 

School  Town  of  Montlcello  v.  Kendall,  72  Ind.  91,  37  Am.  Rep. 

139   355 

Schuchardt  v.  Aliens,  1  Wall.  (U.  S.)  359,  17  L.  Ed.  642 207,  224 

Schultz  v.  Griffin,  121  N.  Y.  294,  24  N.  E.  480,  18  Am.  St.  Rep.  825  170 

Schutz  v.  Jordan  (C.  C.)  32  Fed.  55 67 

Schwind  v.  Boyce,  94  Md.  510,  51  Atl.  45 261 

Scott  v.  Elmerdorf,  12  Johns.  (N.  Y.)  317 214 

v.  Franklin,  15  East,  428 466 

v.  Lessee,  1  Doug.  (Mich.)  119 115 

y.  Lord  Ebury,  L.  R.  2  C.  P.  255,  267 56 

v.  Maier,  56  Mich.  554,  23  N.  W.  218,  56  Am.  Rep.  402 444 

V.  New  Brunswick  Bank,  23  Can.  Sup.  Ct.  277 51 

v.  Rogers,  31  N.  Y.  676 401 

v.  Surman,  Willes,  400,  406 222,  304 

Scudder  v.  Anderson,  54  Mich.  122,  19  N.  W.  775 217 

Scully  v.  Dodge,  40  Kan.  395,  19  Pac.  807 214 

v.  Scully's  Ex'r,  28  Iowa,  548 443 

Sea  v.  Carpenter,  16  Ohio,  412 455 

Seaber  v.  Hawkes,  5  M.  &  P.  549 361,  362 

Sears  v.  Wingate,  3  Allen  (Mass.)  103 , 200 

Seaver  v.  Coburn,  10  Cush.  (Mass.)  324 348 

Second  Nat.  Bank  v.  Howe,  40  Minn.  390,  42  N.  W.  200,  12  Am. 

St.  Rep.  744 288 

v.  Steel  Co.,  155  Ind.  581,  58  N.  E.  833 340,  346 

Security  Co.  v.  Graybeal,  85  Iowa,  543,  52  N.  W.  497,  39  Am.  St 

Rep.  311 213 

Seeberger  v.  McCormick,  178  111.  404,  53  N.  E.  340 370,  374 

Segar  v.  Parrish,  20  Grat.  (Va.)  672 455 

Seidel  v.  Peschkaw,  27  N.  J.  Law,  427 435 

Seiple  v.  Irwin,  30  Pa.  513 209 

Semenza  v.  Brinsley,  18  C.  B.  (N.  S.)  467 310 

Sencerbox  v.  McGra^de,  6  Minn.  484  (Gil.  334) 256 

Senter  v.  Monroe,  77  Cal.  347,  19  Pac.  580 369 

Seton  v.  Slade,  7  Ves.  265,  276 134,  225 


564  CASES  CITED. 

Page 

Settle  v.  Insurance  Co.,  7  Mo.  379 221 

Bevier  v.  Railroad  Co.,  92  Ala.  258,  9  South.  405 43,  44 

Seyds  v.  Hay,  4  T.  R.  260 401 

Seymour  v.  Bridge,  14  Q.  B.  D.  460 164 

v.  Greenwood,  6  H.  &  N.  359,  7  H.  &  N.  355 272,  273 

v.  Newton,  105  Mass.  272,  275 476 

v.  Wyckoff,  10  N.  Y.  213 72 

Shackell  v.  Rosier,  2  Bing.  (N.  O.)  638 92 

Shackman  v.  Little,  87  Ind.  181 176 

Shaf er  v.  Insurance  Co.,  53  Wis.  361,  10  N.  W.  381 261 

Shane  v.  Palmer,  43  Kan.  481,  23  Pac.  594 213 

Shanks  v.  Lancaster,  5  Grat.  (Va.)  110,  50  Am.  Dec.  108 334 

Sharland  v.  Mildon,  5  Hare,  469 378 

Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720 108,  393 

Sharp  v.  Jones,  18  Ind.  314,  81  Am.  Dec.  359 302,  387 

v.  Swayne,  1  Pennewill,  210,  40  Atl.  113 363 

Shattuck  v.  Eastman,  12  Allen  (Mass.)  369 342 

Shaw  v.  Mining  Co.,  13  Q.  B.  D.  103 289 

v.  Nudd,  8  Pick.  (Mass.)  9 20 

v.  Stone,  1  Cush.  (Mass.)  228 350 

Shearman  v.  Morrison,  149  Pa.  386,  24  Atl.  313 432 

Sheets  v.  Selden,  2  Wall.  (U.  S.)  177,  17  L.  Ed.  822 20 

Sheffield  v.  Ladue,  16  Minn.  388  (Gil.  346)  10  Am.  Rep.  145.  .88,  369 

Sheldon  v.  Cox,  Ambl.  624 258,  259 

Shelton  v.  Darling,  2  Conn.  435 353 

v.  Livius,  2  C.  &  J.  411 226 

Shepard  v.  Sherin,  43  Minn.  382,  45  N.  W.  718 376,  377 

Shepard  &  Morse  Lumber  Co.  v.  Eldridge,  171  Mass.  516,  51  N. 

E.  9,  41  L.  R.  A.  617,  68  Am.  St.  Rep.  446 74 

Shepherd  v.  Harrison,  L.  R.  4  Q.  B.  196,  493,  5  H.  L.  116 476 

Sheppard  v.  Bank,  7  H.  &  N.  661 319 

Sherman  v.  Fitch,  98  Mass.  59 31,  58 

Sherwood  v.  Stone,  14  N.  Y.  267 438 

Shiells  v.  Blackburne,  1  H.  Bl.  159 411,  413,  414 

Shirland  v.  Iron  Works  Co.,  41  Wis.  162 419 

Shisler  v.  Vandike,  92  Pa.  449,  37  Am.  Rep.  702 50 

Shoenfeld  v.  Fleisher,  73  111.  404 399 

Shoninger  v.  Peabody,.57  Conn.  42,  17  Atl.  278,  14  Am.  St.  Rep. 

88    47,  61,  68 

Short  v.  Millard,  68  111.  292 134 

v.  Skip  with,  1  Brock.  103,  Fed.  Cas.  No.  12,809 401,  402 

v.  Spackman,  2  B.  &  Ad.  962 388 

Shrimpton  &  Son  v.  Brice,  102  Ala.  655,  15  South.  452 212 


CASES  CITED.  565 

Page 

Shuenfeldt  v.  Junkermann  (C.  C.)  20  Fed.  357 50 

Shuetze  v.  Bailey,  40  Mo.  69 23 

Sibbald  v.  Iron  Co.,  83  N.  Y.  378,  38  Am.  Rep.  441 451,  452 

Silver-man  v.  Bullock,  98  111.  11 , 211 

Simmons  v.  More,  100  N.  Y.  140,  2  N.  E.  640 369,  370,  374 

Simmons  Hardware  Co.  v.  Todd,  79  Miss.  163,  29  South.  851....  236 

Simon  v.  Ass'n,  54  Ark.  58,  14  S.  W.  1101 77 

v.  Johnson,  101  Ala.  368,  13  South.  491 209 

v.  Metivler,  1  Wm.  Bl.  599 225 

v.  Motives,  3  Burr.  1921 362 

Simonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec.  41.  .357,  358,  367 

Simons  v.  Patchett,  7  El.  &  B.  568 373 

Simonton  v.  Bank,  24  Minn.  216 163,  164 

Simpson  v.  Carson,  11  Or.  361,  8  Pac.  325 154 

v.  Com.,  89  Ky.  412,  12  S.  W.  630 29 

v.  Lamb,  17  C.  B.  603 448,  451 

v.  Pinkerton,  10  Wkly.  Notes  Cas.  (Pa.)  423 432 

v.  Waldby,  63  Mich.  439,  30  N.  W.  199 129 

Sims  v.  Bond,  5  B.  &  Ad.  389,  393 387 

v.  Brittain,  1  N.  &  M.  594 427,  462 

v.  Dame,  113  Ind.  127,  15  N.  E.  217 110 

Sines  v.  Superintendents,  58  Mich.  503,  25  N.  W.  485 141 

Singer  Mfg.  Co.  v.  Holdfodt,  86  111.  455,  29  Am.  Rep.  43 32 

v.  King,  14  R.  I.  511 381 

V.  Rahn,  132  U.  S.  518,  10  Sup.  Ct.  175,  33  L.  Ed.  440 

10,  269,  277 
Sioux  City  &  P.  R,  Co.  v.  Bank,  10  Neb.  556,  7  N.  W.  311,  35 

Am.  Rep.  488 200 

v.  Walker,  49  Iowa,  273 407 

Skaaraas  v.  Finnegan,  31  Minn.  48,  16  N.  W.  456 370,  374 

32  Minn.  107,  19  N.  W.  729 370,  373,  374 

Skelton  v.  Springett,  11  C.  B.  452 41 

Skiff  v.  Stoddard,  63  Conn.  198,  26  AtL  874,  28  Atl.  104,  21  L. 

R.  A.  102 178,  224 

Skilton  v.  Payne,  18  Misc.  Rep.  332,  42  N.  Y.  Supp.  Ill 465 

Skinner  v.  Dayton,  19  Johns.  (N.  Y.)  513,  10  Am.  Dec.  286 64 

Slawson  v.  Loring,  5  Allen  (Mass.)  340,  343,  81  Am.  Dec.  750 

345,  353 

Sleath  v.  Wilson,  9  C.  P.  607 272 

Sloan  v.  Railway  Co.,  62  Iowa,  728,  16  N.  W.  331 122 

Small  v.  Howard,  128  Mass.  131,  35  Am.  Rep.  363 406 

v.  Owings,  1  Md.  Ch.  363 20 


566  CASES   CITED. 

Page 

Smart  v.  Sandars,  5  C.  B.  895  (1848) 161,  404 

3  C.  B.  380 222 

Smedes  v.  Bank,  20  Johns.  (N.  Y.)  372,  380 402 

Smethhurst  v.  Mitchell,  1  E.  &  E.  622 239 

Smiley  v.  City  of  Chattanooga,  6  Heisk.  (Tenn.)  604 31 

Smith  v.  Arnold,  5  Mason  (U.  S.)  414,  Fed.  Gas.  No.  13,004 108 

v.  Barnard,  148  N.  Y.  420,  42  N.  E.  1054 65 

v.  Binder,  75  111.  492 376 

v.  Brotherline,  62  Pa.  461 420,  421 

v.  dews,  105  N.  Y.  283,  11  N.  E.  632,  59  Am.  Rep.  502 206 

v.  Cologan,  2  Term  R.  188 76,  87 

v.  Crews,  2  Mo.  App.  269 455 

v.  Dare,  89  Md.  47,  42  Atl.  909 136 

v.  Fletcher,  75  Minn.  189,  77  N.  W.  800 70 

v.  Hammond,  6  Sim.  10 424 

v.  Holbrook,  99  Ga.  256,  25  S.  W.  627 69 

V.  Insurance  Co.,  60  Vt.  682,  15  Atl.  353,  1  L.  R.  A.  216,  6  Am. 

St.  Rep.  144 219 

V.  Keal,  9  Q.  B.  D.  340 282 

v.  Kelly,  43  Mich.  390,  5  N.  W.  437 377 

V.  Kidd,  68  N.  Y.  130,  23  Am.  Rep.  157 213,  214 

V.  Lindo,  5  C.  B.  (N.  S.)  587 456,  459 

V.  Levoux,  1  H.  &  M.  123,  33  L.  J.  Ch.  167 463 

T.  McGuire,  3  H.  &  N.  554 184,  193,  216 

V.  Morse,  9  Wall.  (U.  S.)  82,  19  L.  Ed.  597 67 

V.  Munch,  65  Minn.  256,  68  N.  W.  19 273,  274 

V.  Pierce,  45  App.  Div.  628,  60  N.  Y.  Supp.  1011 244,  308 

V.  Sleap,  12  M.  &  W.  585 378 

v.  Sorby,  3  Q.  B.  D.  552 230 

v.  Sublett,  28  Tex.  163 121 

v.  Tracy,  36  N.  Y.  82 178 

v.  Tracy,  36  N.  Y.  79 82,  207,  289 

V.  Utley,  92  Wis.  133,  65  N.  W.  744,  35  L.  R.  A.  620. 385 

v.  White,  5  Dana  (Ky.)  376 146 

Smout  v.  Ilbery,  10  M.  &  W.  1 370,  372,  373,  376 

Snell  v.  Pells,  113  111.  145 425 

v.  Stone,  23  Or.  327,  31  Pac.  663 38 

Snelling  v.  Huntingfield,  1  C.,  M.  &  R.  20 30 

Snider  v.  Express  Co.,  77  Mo.  523 388 

.  Snodgrass  v.  Butler,  54  Mass.  45 42-1 

Snook  v.  Davidson,  2  Camp.  218 474 

Snow  v.  Grace,  29  Ark.  131 65 

Snowball,  Ex  parte,  L.  R.  7  Ch.  534,  548 149 


CASES   CITED.  567 

Page 

Snowdon  v.  Davis,  1  Taunt.  359 ,. . . . .  378 

Snyder  v.  Partridge,  138  111.  173,  29  N.  E.  851,  32  Am.  St.  Rep. 

130  261 

v.  Sponable,  1  Hill  (N.  Y.)  567 99 

v.  Wolford,  33  Minn.  175,  22  N.  W.  254,  53  Am.  Rep.  22 108 

Soames  v.  Spencer,  1  Dowl.  &  R.  32 29,  62,  64 

Soens  v.  Racine,  10  Wis.  271 115 

Solly  v.  Rathbone,  2  M.  &  S.  298 223,  474 

Solomans  v.  Fender,  3  H.  &  C.  639 454,  455 

Solomon  v.  Barker,  2  F.  &  F.  726 .' 405 

v.  Penoyar,  89  Mich.  11,  50  N.  W.  644 369 

Solomons  v.  Dawes,  1  Esp.  83 80 

Soloway,  The,  10  Prob.  D.  137,  54  L.  J.  P.  83 256 

Soltau  v.  Gerdau,  119  N.  Y.  380,  23  N.  E.  864,  16  Am.  St.  Rep. 

843   322,  323 

v.  Vulcanite  Co.,  12  Misc.  Rep.  131,  33  N.  Y.  Supp.  77 145 

Souhegan  Nat  Bank  v.  Boardman,  46  Minn.  293,  48  N.  W.  1116. . 

350,  354 

v.  Wallace,  61  N.  H.  24 425 

Southern  v.  How,  Cro.  Jac.  468 118 

Southern  Exp.  Co.  Y.  Palmer,  48  Ga.  85 61 

Southern  Life  Ins.  Co.  Y.  McCain,  96  U.  S.  84,  24  L.  Ed.  653. .  .38,  138 

Southgate  v.  Railroad,  61  Mo.  89 31 

South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3  C.  P.  4G3 31 

L.  R.  4  C.  P.  617 31 

Southwell  v.  Bowditch,  1  C.  P.  D.  374 357,  360 

Sparks  v.  Transfer  Co.,  104  Mo.  531,  15  S.  W.  417,  12  L.  R.  A. 

714,  24  Am.  St  Rep.  351 348 

Sparta  School  Tp.  v.  Mendell,  138  Ind.  188,  37  N.  E.  604 367 

Spear  v.  Gardner,  16  La.  Ann.  383 448 

Spears  v.  Hartley,  3  Esp.  81 465,  473 

Spear  &  Tietjen  Supply  Co.  v.  Van  Riper  (D.  C.)  103  Fed.  689 211 

Spedding  v.  Nevill,  L.  R.  4  C.  P.  212 373 

Spence  v.  Cotton  Mills,  115  N.  C.  210,  20  S.  E.  372 49 

Spencer  v.  Blackman,  9  Wend.  (N.  Y.)  167 401 

y.  Field,  10  Wend.  (N.  Y.)  88 308 

v.  Towles,  18  Mich.  9 19,  402 

Spittle  v.  Lavender,  2  Brod.  &  B.  452 88,  357 

Spofford  v.  Hobbs,  29  Me.  148,  48  Am.  Dec.  521 63 

Spooner  v.  Holmes,  102  Mass.  503,  3  Am.  Rep.  491 380 

Sprague  v.  Bailey,  19  Pick.  (Mass.)  436 114 

v.  Gillett,  9  Mete.  (Mass.)  91 175,  211 

Spraighte  v.  Hawley,  39  N.  Y.  441,  100  Am.  Dec.  452 380 


568  CASES  CITED. 

Page 

Springfield  Say.  Bank  v.  KJaer,  82  Minn.  180,  84  N.  W.  752 213 

Spurr  v.  Cass,  L.  R.  5  Q.  B.  656 304 

Stackpole  v.  Arnold,  11  Mass.  27,  6  Am.  Dec.  150 245 

v.  Erie,  2  Wils.  133 459 

Stacy  v.  Bank,  12  Wis.  629 129,  131 

Stagg  v.  Elliott,  12  C.  B.  N.  S.  373,  381 198 

Stainback  v.  Bank,  11  Grat.  (Va.)  269 169 

v.  Read,  11  Grat  (Va.)  281,  62  Am.  Dec.  648 198,  216 

Stainer  v.  Tysen,  3  Hill  (N.  Y.)  279 169 

Stainsby  v.  Boat  Co.,  3  Daly  (N.  Y.)  98 56 

Standard  Oil  Co.  v.  Gilbert,  84  Ga.  714,  11  S.  E.  491,  8  L.  R.  A. 

410 139 

Stanley  v.  Nelson,  28  Ala.  514 105 

Stanton  v.  Bell,  9  N.  C.  145,  11  Am.  Dec.  744 406,  410,  411 

v.  Embrey,  93  U.  S.  548,  23  L.  Ed.  983 443 

v.  Willson,  3  Day  (Conn.)  37,  3  Am.  Dec.  255. : 41 

Staples  v.  Schmid,  18  R.  I.  224,  26  Atl.  193,  19  L.  R.  A.  824 

271,  273,  275,  278 

Stark  v.  Parker,  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425 453 

Starks  v.  Sikes,  8  Gray  (Mass.)  609,  69  Am.  Dec.  270 82 

Starr  v.  Stiles  (Ariz.)  19  Pac.  225 431,  434 

State  v.  Bacon,  40  Vt.  456 298 

v.  Boring,  15  Ohio,  507 24 

v.  Burke,  15  R.  I.  324,  4  Atl.  761 298 

v.  Butties'  Ex'r,  3  Ohio  St.  309 49,  58 

V.  Com'rs,  60  Neb.  566,  83  N.  W.  733 359,  360 

v.  Denoon,  31  W.  Va.  122,  5  S.  E.  315 301 

T.  Fredericks,  47  N.  J.  Law,  469,  1  Atl.  470 287 

v.  Greensdale,  106  Ind.  364,  6  N.  E.  926,  55  Am.  Rep.  753. ..  430 
V.  Kittelle,  110  N.  C.  560,  15  S.  E.  103,  15  L.  R.  A.  694,  28 

Am.  St.  Rep.  698 301 

v.  McCance,  110  Mo.  398,  19  S.  W.  648 298 

v.  Mahoney,  23  Minn.  181 298,  299 

v.  Mueller,  38  Minn.  497,  38  N.  W.  691 ^299 

v.  Pepper,  31  Ind.  76 25 

v.  Railroad  Co.,  8  S.  C.  129 03" 

v.  Roby,  52  Mich.  577,  18  N.  W.  365,  50  Am.  Rep.  270 301 

v.  Shaw,  28  Iowa,  67 49,  58 

V.  Smith,  78  Me.  260,  4  Atl.  412,  57  Am.  Rep.  802 268 

v.  Torinus,  26  Minn.  1,  49  N.  W.  259,  37  Am.  Rep.  395 49,  58 

v.  Walker,  125  U.  S.  339,  8  Sup.  Ct.  929,  31  L.  Ed.  769 157 

v.  Weber,  111  Mo.  204,  20  S.  W.  33 298 

v.  Young,  23  Minn.  551 .  .25-27 


CASES   CITED.  569 

Page 

State  Bank  T.  Kelly,  109  Iowa,  544,  80  N.  W.  520 74 

State  Nat.  Bank  v.  Mfg.  Co.,  17  Tex.  Civ.  App.  214,  42  S.  W.  1016  129 

State  of  Illinois  v.  Delafield,  8  Paige  (N.  Y.)  527 207 

Stead  v.  Thompson,  3  B.  &  Ad.  357 , 99 

Steamship  Bulgarian  Co.  v.  Transportation  Co.,  135  Mass.  421 ....  361 

Stearns  v.  Doe,  12  Gray  (Mass.)  482,  74  Am.  Dec.  608 42 

Stebbins  v.  Walker,  46  Mich.  5,  18  N.  W.  521 312 

v.  Waterhouse,  58  Conn.  370,  20  Atl.  480 424 

Steele  v.  Ellmaker,  11  Serg.  &  R.  (Pa.)  86 226 

v.  Lewis,  1  T.  B.  Mon.  (Ky.)  43 103 

Steele-Smith  Grocery  Co.  v.  Potthast,  109  Iowa.  413,  80  N.  W.  519  239 

Steinback  v.  .Read,  11  Grat.  281,  62  Am.  Dec.  648 216 

Steiner  v.  Clisby,  103  Ala.  181,  15  South.  612 405 

Stephens  v.  Sessa,  50  App.  Div.  547,  64  N.  Y.  Supp.  28 159 

Stephenson  v.  Railroad  Co.,  2  Duer  (N.  Y.)  341 43 

Stevens  v.  Babcock,  3  B.  &  Ad.  354 123,  427 

v.  Biller,  25  Ch.  D.  31 466,  469 

v.  Elwell,  4  M.  &  S.  259 380 

Y.  Hill,  5  Esp.  247 379 

v.  Lovejoy  (Cal.)  27  Pac.  33 380 

v.  Midland  Counties  Ry.,  10  Ex.  352 380 

v.  Walker,  55  111.  151 405,  409 

V.  Wilson,  3  Denio  (N.  Y.)  472 320 

6  Hill  (N.  Y.)  512 320,  321 

T.  Woodward,  6  Q.  B.  318 271 

Stevenson  v.  Blakelock,  1  M.  &  S.  535 468,  470 

v.  Ewing,  87  Tenn.  49,  9  S.  W.  230 109. 

v.  Mortimer,  Cowp.  805 315,  393 

v.  Taylor,  2  Mich.  N.  P.  95 436 

Stewart  v.  Butts,  45  111.  App.  512 411 

v.  Cowles,  67  Minn.  184,  69  N.  W.  695 208 

v.  Kennett,  2  Camp.  177 81 

v.  Parnell,  147  Pa.  523,  23  Atl.  838 407 

v.  Woodward,  50  Vt.  78,  28  Am.  Rep.  488 210 

Stier  v.  Insurance  Co.  (C.  C.)  58  Fed.  843 157 

Stiger  v.  Bent,  111  111.  328 213 

Stillwell  v.  Staples,  19  N.  Y.  401 83 

Stilwell  v.  Insurance  Co.,  72  N.  Y.  385 , 210 

Stimpson  v.  Sprague,  6  Greenl.  (Me.)  470 405,  406 

Stinchfield  v.  Little,  1  Me.  231,  10  Am.  Dec.  65 334 

Stinson  v.  Lee,  68  Miss.  113,  8  South.  272,  9  L.  R.  A.  830,  24  Am. 

St.  Rep.  257 245,  348 

Stoddart  v.  Key,  62  How.  Prac.  (N.  Y.)  137 142 


570  CASES  CITED. 

Pag« 

Stoddart's  Case,  4  Ct.  Ol.  (U.  S.)  511 77 

Stollenwerck  v.  Thacher,  115  Mass.  224 320 

Stone  v.  Cartwright,  6  T.  R.  411 385 

v.  Hills,  45  Conn.  44,  29  Am.  Rep.  635 270 

v.  State,  12  Mo.  400 227 

v.  Wood,  7  Cow.  (N.  Y.)  453 244,  333 

Story  v.  Ashton,  L.  R.  4  Q.  B.  476 270 

Stowell  v.  Eldred,  39  Wis.  614 244 

Strachan,  In  re,  4  Ch.  D.  123 324 

Strasser  v.  Conklin,  54  Wis.  102,  11  N.  W.  254 66 

Strauch  v.  May,  80  Minn.  343,  83  N.  W.  156 262 

Strauss  v.  Francis,  L.  R.  1  Q.  B.  379 197 

v.  Meertief,  64  Ala.  299,  38  Am.  Rep.  8 449,  450 

Streissguth  v.  Bank,  43  Minn.  50,  44  N.  W.  797,  7  L.  R.  A.  363, 

19  Am.  St.  Rep.  213 : 129 

Strickland  v.  Insurance  Co.,  66  Iowa,  466,  23  N.  W.  926 219 

Strong  v.  High,  2  Rob.  (La.)  103,  38  Am.  Dec.  195 408 

v.  Stewart,  9  Heisk.  (Tenn.)  137 127 

v.  West,  110  Ga.  3S2,  35  S.  E.  693 451 

Stuart  v.  Adams,  89  Cal.  367,  26  Pac.  971 217 

v.  Haight,  9  T.  L.  R.  488 370 

Sturdivant  v.  Hull,  59  Me.  172,  8  Am.  Rep.  409 339,  348 

Suit  v.  Woodhall,  113  Mass.  391 258 

Sullivan  v.  Sliailor,  70  Conn.  733,  40  Atl.  1054 307 

Summers  v.  Solomon,  7  El.  &  B.  879 36,  37 

Summerville  v.  Railroad  Co.,  62  Mo.  391 37 

Sumner  v.  Conant,  10  Vt.  9 103 

v.  Reicheniker,  9  Kan.  320 455 

v.  Stewart,  69  Pa.  321 177 

Sunbury  Fire  Ins.  Co.  v.  Humble,  100  Pa.  495 288 

Sun  Printing  &  Publishing  Ass'n  v.  Moore,  183  U.  S.  642,  22  Sup. 

Ct  240,  46  L.  Ed.  366 359 

Sussdorff  v.  Schmidt,  55  N.  Y.  319 446 

Sutherland  v.  Wyer,  67  Me.  64 449,  450 

Sutton,  Ex  parte,  2  Cox,  84 119 

v.  Gray  (1894)  1  Q.  B.  285 437 

v.  Tatham,  10  Ad.  &  E.  27 177 

Swan  v.  Nesmith,  7  Pick.  (Mass.)  220,  19  Am.  Dec.  282 438 

Swartwout  v.  Evans,  37  111.  442 69 

Swartz  v.  Ballou,  47  Iowa,  188,  29  Am.  Rep.  470 25,  27 

Sweet  v.  Jacocks,  6  Paige  (N.  Y.)  355,  31  Am.  Dec.  252 420 

v.  Pym,  1  East,  4 472 

Sweeting  v.  Pearce,  7  C.  B.  (N.  S.)  449 .  17& 


CASES  CITED.  571 

Page 
Swentzel  v.  Bank,  147  Pa.  140,  23  Atl.  405,  415,  15  L.  R.  A.  305, 

30  Am.  St.  Rep.  718 412 

Swift  v.  Jewsbury,  L.  R.  9  Q.  B.  301 ,. .  .91,  382 

v.  Tyson,  16  Pet  (U.  S.)  1,  21,  10  L.  Ed.  865 ...466,  471 

Swire  v.  Francis,  3  App.  Oas.  106 284 

Switzer  v.  Connett,  11  Mo.  88 401 

v.  Wilvers,  24  Kan.  384,  36  Am.  Rep.  259 207 

Sykes  v.  Dixson,  9  Ad.  &  E.  G93 329 

V.  Giles,  5  M.  &  W.  645 214,  226 

5  M.  &  W.  695 227 

T 

Taher  v.  Cannon,  8  Mete.  (Mass.)  456 211 

Taf  t  v.  Baker,  100  Mass.  68 211 

v.  Brewster,  9  Johns.  (N.  ¥.)  334,  6  Am.  Dec.  280 333 

Tagg  v.  Bowman,  99  Pa.  376 432 

108  Pa.  273,  56  Am.  Rep.  204 432 

Taggart  v.  Stanbery,  2  McLean  (U.  S.)  543,  Fed.  Cas.  No.  13,724  170 

Taintor  v.  Prendergast,  3  Hill  (N.  Y.)  72,  38  Am.  Dec.  618 304 

Talbot  v.  Bowen,  1  A.  K.  Marsh.  (Ky.)  436,  10  Am.  Dec.  747 107 

Talcott  v.  Railroad  Co.,  159  N.  Y.  461,  54  N.  E.  1 306 

v.  Smith,  142  Mass.  542,  8  N.  E.  413 458 

Talmage  v.  Bierhause,  103  Ind.  270,  2  N.  E.  716 207 

Tanner  v.  Christian,  4  El.  &  B.  591 357,  360 

v.  Page,  106  Mich.  155,  63  N.  W.  993 435 

Tappan  v.  Morseman,  18  Iowa,  499 213 

Tarbuck  v.  Bispham,  2  M.  &  W.  2 99 

Tasher  v.  Shephard,  6  H.  &  N.  575 144,  145 

Tatam  v.  Reeve  (1893)  1  Q.  B.  44 164,  460 

Tate  v.  Evans,  7  Mo.  419 215 

v.  Hyslop,  15  Q.  B.  D.  368 262 

Tatterson  v.  Manfg.  Co.,  106  Mass.  56 141 

Taussig  v.  Hart,  58  N.  Y.  425 416 

Taylor,  In  re  (1891)  1  Ch.  590 473 

v.  Ass'n,  68  Ala.  229 66 

v.  Brewer,  1  M.  &  S.  290 441 

v.  Hayes,  63  Vt.  475,  21  Atl.  610 394 

v.  Labeaume,  17  Mo.  338 217 

v.  Lendley,  9  East,  49 136 

v.  Morgan's  Sons  Co.,  124  N.  Y.  184,  26  N.  E.  314 445 

v.  Nostrand,  134  N.  Y.  108,  31  N.  E.  246 370,  462 

V.  Plumer,  3  M.  &  S.  562 ; 324,  325 


672  CASES   CITED. 

Page 

Taylor  v.  Robinson,  14  Cal.  396 77 

2  Mo.  730 467 

v.  Stray,  2  C.  B.  (N.  S.)  197 458 

Taylor  &  Farley  Organ  Co.  v.  Starkey,  59  N.  H.  142 207,  316 

Teague  v.  Maddox,  150  U.  S.  128,  14  Sup.  Ct.  46,  37  L.  Ed.  1025. .     61 

Tedrick  v.  Hiner,  61  111.  189 109 

Temperton  v.  Russell  (1893)  1  Q.  B.  376 329 

Temple  v.  Pomroy,  4  Gray  (Mass.)  128 .211,  215,  218 

Tenant  v.  Elliott,  IB.  &  P.  3 425 

Terre  Haute  &  I.  R.  Go.  v.  Brown,  107  Ind.  336,  8  N.  E.  218 44 

v.  McMurray,  98  Ind.  358,  49  Am.  Rep.  752 43 

Terrell  v.  Butterfleld,  92  Ind.  1 433 

Terwilliger  v.  Beals,  6  Lans.  (N.  Y.)  403 436 

v.  Murphy,  104  Ind.  32,  3  N.  E.  404 369 

v.  Railroad  Co.,  149  N.  Y.  86,  43  N.  E.  432 153,  157,  165 

Tew  v.  Labiche,  4  La.  Ann.  526 213 

Texas  Loan  Agency  v.  Taylor,  88  Tex.  47,  29  S.  W.  1057 260 

Texas  &  P.  R.  Co.  v.  Lester,  75  Tex.  56,  12  S.  W.  955 256 

v.  Scoville,  10  C.  C.  A.  479,  62  Fed.  730,  27  L.  R.  A.  179 273 

Texira  v.  Evans,  1  Anst.  228 24 

Thacher  v.  Moors,  134  Mass.  156 320 

v.  Pray,  113  Mass.  291,  18  Am.  Rep.  480 67 

Thacker  v.  Hardy,  4  Q.  B.  D.  685 460 

Thayer  v.  Meeker,  86  111.  470 257 

Third  Nat.  Bank  v.  Bank,  61  Miss.  112,  48  Am.  Rep.  78 129,  131 

v.  Gas  Co.,  36  Minn.  75,  30  N.  W.  440 324 

v.  Harrison  (C.  C.)  10  Fed.  243 264 

Thomas  v.  Atkinson,  38  Ind.  248 243 

v.  Davenport,  9  B.  &  C.  78  (1829) 240 

v.  Swanke,  75  Minn.  326,  77  N.  W.  981 213 

Thompson  v.  Barnum,  49  Iowa,  392 210,  316 

v.  Bell,  10  Ex.  10 282 

V.  Clay,  60  Mich.  627,  27  N.  W.  699 37 

V.  Elliott,  73  111.  221 213 

v.  Gardner,  1  C.  P.  D.  777 225 

V.  Havelock,  1  Camp.  527 423,  424 

V.  Hynds,  15  Vt.  389,  49  Pac.  293 315 

v.  Kelly,  ]01  Mass.  291,  3  Am.  Rep.  353 226,  227 

v.  Perkins,  3  Mason,  C.  C.  (U.  S.)  232,  Fed.  Gas.  No.  13,972. .  438 
Thompson-Houston  Electric  Co.  v.  Electric  Co.,  12  C.  C.  A.  643,  65 

Fed.  341  263 

Thomson  v.  Davenport,  9  B.  &  0.  78 236,  238,  363,  364,  366 


CASES  CITED.  573 

Page 

Tborne  v.  Deas,  4  Johns.  (N.  Y.)  84 18,  19,  402 

v.  Heard  (1895)  A.  C.  495,  64  L.  J.  Ch.  652 289 

(1894)  1  Ch.  599 289 

Thornton  v.  Thornton,  31  Grat  (Ya.)  212 436 

Thrift  v.  Payne,  71  111.  408 453 

Thurber  v.  Anderson,  88  111.  167 37 

v.  Bank  (C.  C.)  52  Fed.  513 316 

Tice  v.  Gallup,  2  Hun  (N.  Y.)  446 208 

Tiedemann  &  Ledermann  Frere,  In  re  (1899)  2  Q.  R,  66 85 

Tier  v.  Lampson,  35  Vt.  179,  82  Am.  Dec.  634 36,  138 

Tigress,  The,  B.  &  L.  38,  9  Jur.  (N.  S.)  361 476 

Tilden  v.  Barnard,  43  Mich.  376,  5  N.  W.  420,  38  Am.  Rep.  197. .  348 

Tilleny  v.  Wolverton,  54  Minn.  75,  55  N.  W.  822 65 

Tiller  v.  Spradley,  39  Ga.  36 342 

Tillotson  v.  McCrillis,  11  Vt.  477 433 

Tingley  v.  Boom  Co.,  5  Wash.  644,  32  Pac.  737,  33  Pac.  1055 68 

Tipping  v.  Robbins,  64  Wis.  546,  25  N.  W.  713 110 

Titus  v.  Bank,  35  N.  J.  Law,  588 129 

Todd  v.  Emly,  8  M.  &  W.  505 112 

Toland  v.  Murray,  18  Johns.  (N.  Y.)  24 389,  427 

Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Mylott,  6  Ind.  App.  438,  33  N.  E. 

135 43 

Toledo,  W.  &  W.  R.  Co.  v.  Rodrigues,  47  111.  188,  95  Am.  Dec.  484  44 

Tome  v.  Railroad  Co.,  39  Md.  36,  17  Am.  Rep.  540 293 

Topham  v.  Braddick,  1  Taunt  572 429,  432,  434 

Toplett  v.  Stockdale,  1  Ry.  &  M.  337 92 

Torrey  v.  Bank,  9  Paige  (N.  Y.)  649 420 

Towle  v.  Dresser,  73  Me.  252 96 

Towle  v.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195 193,  196,  205,  207 

Towne  v.  Rice,  122  Mass.  67 350 

Town  of  Ansonia  v.  Cooper,  64  Conn.  536,  30  Atl.  760 65 

Town  of  Bloomfield  v.  Bank,  121  U.  S.  135,  7  Sup.  Ct  865,  30  L. 

Ed.  923 62 

Town  of  Grafton  v.  Follansbee,  16  N.  H.  450,  41  Am.  Dec.  736. ...  81 

Townsend  v.  Corning,  23  Wend.  (N.  Y.)  435 82 

Tracy  v.  Wood,  3  Mason  (U.  S.)  132,  Fed.  Gas.  No.  14,130 411 

Trafton  v.  U.  S.,  3  Story  (U.  S.)  646,  Fed.  Cas.  No.  14,135 427 

Trainer  v.  Morrison,  78  Me.  160,  3  Atl.  185,  57  Am.  Rep.  790.  .184,  209 

Traub  v.  Milliken,  57  Me.  67,  2  Am.  Rep.  14 310 

Travelers'  Ins.  Co.  v.  Mosley,  8  Wall.  (U.  S.)  397,  19  L.  Ed.  437. . 

253,  255 

Treadway  v.  Railroad  Co.,  40  Iowa,  526 251 


574  CASES  CITED. 

Page 
Trentor  v.  Pothen,  46  Minn.  298,  49  N.  W.  129,  24  Am.  St.  Rep. 

225 262,  263 

Treuttel  v.  Barendon,  8  Taunt.  100 198 

Tribe  v.  Taylor,  1  C.  P.  D.  505 446 

Trickett  v.  Tomlinson,  13  C.  B.  (N.  S.)  663 188 

Triggs  v.  Jones,  46  Minn.  277,  284,  48  N.  W.  1113 67,  87,  88 

Triplet  v.  Olcott,  3  Johns.  Ch.  (N.  Y.)  473 427 

Tripp  v.  Paper  Co.,  13  Pick.  (Mass.)  291 344 

Trist  v.  Child.  21  Wall.  (U.  S.)  441,  22  L.  Ed.  623 93,  459 

Troy  Fertilizer  Co.  v.  Zachry,  114  Ala.  177,  21  South.  471 102 

Trudo  v.  Anderson,  10  Mich.  357,  81  Am.  Dec.  795 207 

Trueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756 59,  95 

Trueman  v.  Loder,  11  Ad.  &  E.  589 36,  38,  138,  223,  233,  234 

Trull  v.  Hammond,  71  Minn.  172,  73  N.  W.  642 213 

Tucker  v.  Cocke,  32  Mass.  184. 106 

v.  Humphrey,  4  Bing.  516 476 

v.  Moreland,  10  Pet.  (U.  S.)  58,  9  L.  Ed.  345 . . . 95 

v.  Railroad  Co.,  54  Mo.  177 43 

Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101 339,  342,  348 

Tuckwell  v.  Lambert,  5  Gush.  (Mass.)  23 327 

Tull  v.  David,  45  Mo.  444,  100  Am.  Dec.  385 108 

Turnbull  v.  Garden,  20  L.  R.  218 424 

Turner  v.  Burkinshaw,  L.  R.  2  Ch.  488,  491 428,  429 

v.  Goldsmith  (1891)  1  Q.  B.  544 135,  141 

v.  Insurance  Co.,  55  Mich.  236,  21  N.  W.  326 278 

Turpin  v.  Bilton,  5  M.  &  G.  455 408 

Tustin  Fruit  Assn.  v.  Fruit  Co.  (Cal.)  53  Pac.  693 387 

Tuthill  v.  Wilson,  90  N.  Y.  423 244 

Tutt  v.  Hobbs,  17  Mo.  486 367 

Tuttle  v.  Green  (Ariz.)  48  Pac.  1009 144 

Twohy  Mercantile  Co.  v.  Melbye,  78  Minn.  357,  81  N.  W.  20.  .324,  326 

Tyler  v.  E.  G.  Bernard  Co.  (Tenn.  Ch.  App.)  57  S.  W.  179 446 

Tynan  v.  Dulling  (Tex.  Civ.  App.)  25  S.  W.  465,  818 118 

Tyrrell  v.  Bank,  10  H.  L.  Cas.  26 '. 435 

U 

Udell  v.  Atherton,  7  H.  &  N.  172 286,  287 

Uhlich  v.  Muhlke,  61  111.  499 ., 418 

Underwood  v.  Lewis  (1894)  2  Q.  B.  306 452 

Union  v.  Wolsely,  1  T.  R.  674 336 

Union  Bank  v.  Campbell,  4  Humph.  (Tenn.)  398 261 

Union  Cent.  Life  Ins.  Co.  v.  Smith,  105  Mich.  353,  63  N.  W.  438  265 


CASES  CITED.  575 

Page 

Union  Gold  Mln.  Co.  v.  Bank,  96  U.  S.  640,  24  L.  Ed.  648 69 

2  Colo.  565 69 

Union  Mut  Life  Ins.  Co.  v.  Wilkinson,  13  Wall.  (U.  S.)  222,  20  L. 

Ed.  617 218 

Union  Nat.  Bank  v.  Insurance  Co.,  18  C.  C.  A.  203,  71  Fed.  473. .  262 
Union  Pac.  R.  Co.  v.  Beatty,  35  Kan.  268,  10  Pac.  845,  57  Am. 

Rep.  160 44 

Union  Stock  Yards  Nat  Bank  v.  Gillespie,  137  U.  S.  411,  11  Sup. 

Ct.  118,  34  L.  Ed.  724 325 

Union  Trust  Co.  v.  Phillips,  7  S.  D.  225,  63  N.  W.  903 303 

United  Ins.  Co.  v.  Scott,  1  Johns.  (N.  Y.)  106 42 

U.  S.  v.  Bartlett,  Dav.  (U.  S.)  9,  Fed.  Cas.  No.  14,532 91 

2  Ware  (U.  S.)  17,  Fed,  Cas.  No.  14,532 315 

v.  Burdett,  The,  9  Pet.  (U.  S.)  682,  689,  9  L.  Ed.  273 256 

v.  Gooding,  12  Wheat.  (U.  S.)  460,  6  L.  Ed.  693 248,  249,  250 

v.  Grossmayer,  9  Wall.  (U.  S.)  72,  19  L.  Ed.  627 49,  104 

T.  Jarvis,  Day  (U.  S.)  274,  Fed.  Cas.  No.  15,468 448 

2  Ware,  278,  Fed.  Cas.  No.  15,468 142,  143 

v.  Nelson,  2  Brock.  (U.  S.)  64,  Fed.  Cas.  No.  15,862 24 

v.  Pinover  (D.  O.)  3  Fed.  305,  309 377,  378 

United  States  Bank  v.  Lyman,  20  Vt.  666,  Fed.  Cas.  No.  924 308 

United  States  Express  Co.  v.  Rawson,  106  Ind.  215,  6  N.  E.  337. .     82 

United  States  Ins.  Co.  v.  Shriver,  3  Md.  Ch.  381 267 

United  States  Life  Ins.  Co.  v.  Advance  Co.,  80  111.  549 397 

United  States  Mortg.  Co.  v.  Henderson,  111  Ind.  24,  12  N.  E.  88. .     86 
United  States  Rolling  Stock  Co.  v.  Railroad  Co.,  34  Ohio  St.  450- 

460,  32  Am.  Rep.  380 229 

United  States  School  Furniture  Co.  v.  Board  (Ky.)  38  S.  W.  864. .  206 
United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec. 

519 387,  389,  391 

Updike  v.  Ten  Broeck,  32  N.  J.  Law,  105 30 

Upton  v.  Archer,  41  Cal.  85,  10  Am.  Rep.  266 24 

v.  County  Mills,  11  Cush.  (Mass.)  583,  586,  59  Am.  Dec.  163. . 

177,  178,  207 

v.  Gray,  2  Me.  373 236 

Urquhart  v.  Mclver,  4  Johns.  (N.  Y.)  103 472 

v.  Mortgage  Co..  85  Minn.  69,  88  N.  W.  264 448,  449,  455 

Utica  Ins.  Co.  v.  Insurance  Co..  17  Barb.  (N.  Y.)  132 418 


576  CASES  CITED. 


Vail  T.  Durant,  7  Allen  (Mass.)  408,  83  Am.  Dec.  695  ............  430 

v.  Meyer,  71  Ind.  159  .....................................  102 

Valentine  v.  Piper,  22  Pick.  (Mass.)  85,  33  Am.  Dec.  715  ..........  170 

Vallette  v.  Tedens,  122  111.  607,  14  N.  E.  52,  6  Am.  St.  Rep.  502.  .  420 
Vanada  v.  Hopkins,  1  J.  J.  Marsh.  (Ky.)  285,  19  Am.  Dec.  92  ----  170 

Van  Alen  v.  Vanderpool,  6  Johns.  (N.  Y.)  69,  5  Am.  Dec.  192  ----  222 

v.  Bank,  52  N.  Y.  1  ......................................  325 

Van  Antwerp  v.  Linton,  89  Hun,  417,  35  N.  Y.  Supp.  318  .......  384 

157  N.  Y.  716,  53  N.  E.  1133  ....................  ,  .....  384 

Van  Annan  v.  Byington,  38  111.  443  ........................  18,  442 

Van  Etta  v.  Evenson,  28  Wis.  33,  9  Am.  Rep.  486  ..............     25 

Van  Praagh  v.  Everidge  (1902)  2  Ch.  2G6  .........  .  ........  136,  226 

Vanuxem  v.  Bostwick  (Pa.)  7  Atl.  598  .........................  452 

Van  Valkinburgh  v.  Watson,  13  Johns.  (N.  Y.)  480,  7  Am.  Dec. 
395   .....................  .  ........................  .  ........     41 

Van  Wart  v.  Wooley,  3  B.  &  C.  439  ...........................  129 

Varnum  v.  Martin,  15  Pick.  (Mass.)  440  ....................  405,  406 

v.  Meserve,  8  Allen  (Mass.)  158  ...........................  158 

Vasse  v.  Smith,  6  Cranch  (U.  S.)  226,  3  L.  Ed.  207  ..............  107 

Vater  v.  Lewis,  36  Ind.  228,  10  Am.  Rep.  29  ................  350,  351 

Vawter  v.  Baker,  23  Ind.  63  ..................................  367 

Vaylor  v.  Mangles,  1  Esp.  109  ................................  465 

Veltum  v.  Koehler,  85  Minn.  125,  88  N.  W.  432  .................  457 

Vent  v.  Osgood,  19  Pick.  (Mass.)  572  ..........................  107 

Vescelius  v.  Martin,  11  Colo.  391,  18  Pac.  338..  ................  217 

Vickers  v.  Hertz,  L.  R.  2  H.  L.  Sc.  113  .....................  321,  322 

Vicksburg  &  M.  R.  Co.  v.  O'Brien,  119  U.  S.  99,  7  Sup.  Ct.  118, 

30  L.  Ed.  299  ....................................  253,  256 

v.  Ragsdale,  54  Miss.  200  .................................     38 

Victoria  Gold  Min.  Co.  v.  Eraser,  2  Colo.  App.  14,  29  Pac.  667.  .  217 
Viele  v.  Insurance  Co.,  26  Iowa,  9,  96  Am.  Dec.  83  ............  219 

Vilas  v.  Downer,  21  Vt.  419  ..................................  442 

Vilwig  v.  Railroad  Co.,  79  Va.  449  .............................  436 

Vincent  v.  Rather,  31  Tex.  77,  98  Am.  Dec.  516  ...............     87 

Vinton  v.  Baldwin,  88  Ind.  104,  45  Am.  Rep.  447  ...............  445 

95  Ind.  433  .........................................  465 

Violett  v.  Powell,  10  B.  Mon.  (Ky.)  347,  52  Am.  Dec.  548  ........  236 

Von  Hurter  v.  Spengeman,  17  N.  J.  Eq.  185  ....................  424 

Vose  v.  Dolan,  108  Mass.  155,  11  Am.  Rep.  331  .................     24 

Voss  v.  Robertson,  46  Ala.  483  ............................  ;...  207 


GASES  CITED.  577 

w 

Page 
Waddlll  v.  Sebree,  88  Va.  1012,  14  S.  B.  849,  29  Am.  St  Rep.  766  236 

Wadhams  v.  Gay,  73  111.  415 228 

Wadsworth  v.  Adams,  138  U.  S.  380,  11  Sup.  Ct  303,  34  L.  Ed. 

984    416,  454 

Wagoner  v.  Watts,  44  N.  J.  Law,  126 20,  23 

Wainwright  v.  Wilkinson,  (32  Md.  146 95 

Waitham  v.  Wakefield,  1  Camp.  120 66 

Wake  v.  Harrop,  1  H.  &  C.  202 360 

Waldele  v.  Bailroad  Co.,  95  N.  Y.  274,  47  Am.  Rep.  41 253 

Waldman  v.  Insurance  Co.,  91  Ala.  170,  8  South.  666,  24  Am.  St 

Rep.  883  117 

Waldo  v.  Martin,  4  B.  &  C.  319 459 

v.  Peck,  7  Vt  434 316 

Walker  v.  Bank,  9  N.  Y.  582 353 

v.  Birch,  6  T.  R.  258 469,  470 

v.  Carrington,  74  111.  446 102 

v.  Christian,  21  Gr,\t  (Va.)  291 , 360 

v.  Cronin,  107  Mass    555,  563 329 

V.  Denison,  86  111.  142 134,  154 

v.  Derby,  5  Biss.  134.  Fed.  Cas.  No.  17,068 134 

v.  Osgood,  98  Mass.  348,  93  Am.  Dec.  1G8 419 

v.  Railroad  Co.,  47  Mich.  338,  11  N.  W.  187 205 

L.  R.  2  Ex.  228 44 

v.  Rostron,  9  M.  &  W.  411 379 

v.  Smith,  1  Wash.  C.  C.  (U.  S.)  152,  Fed.  Cas.  No.  17,086.  .19,  402 

v.  Swartwout  12  Johns.  (N.  Y.)  444,  7  Am.  Dec.  334 367 

v.  Tirrell,  101  Mass.  257,  3  Am.  Rep.  352 441 

v.  Walker,  5  Heisk.  (Term.)  425 87,  397,  400 

Walker  Co.  v.  Produce  Co.,  106  Iowa,  245,  76  N.  W.  673 472 

113  Iowa,  428,  85  N.  W.  614,  53  L.  R.  A.  775 472,  473 

Wallace  v.  Bank,  1  Ala.  565 169,  216 

v.  Cook,  5  Esp.  46 144 

v.  Express  Co.,  134  Mass.  95,  45  Am.  Rep.  301 273 

v.  Floyd,  29  Pa.  184,  72  Am.  Dec.  620 441 

V.  McCollough,  1  Rich.  Eq.  (S.  C.)' 426 22,  28 

v.  Woodgate,  1  C.  &  P.  575,  R.  &  M.  193 472 

Wallis  v.  Manhattan  Co.,  2  Hall  (N.  Y.)  495 146 

Wallis  Tobacco  Co.  v.  Jackson,  99  Ala.  460,  18  South.  120 217 

Walsh  v.  Fisher,  102  Wis.  172,  78  N.  W.  437,  43  L.  R.  A.  810,  72 

Am.  St  Rep.  865 453 

v.    Insurance  Co.,  73  N.  Y.  5 219 

TIFF.P.&  A.— 37 


578  CASES  CITED. 

Page 

Walsh  v.  Pierce,  12  Vt.  130 33 

v.  Whitcomb,  2  Bsp.  565  (1797) 160,  162 

Walshe  v.  Provan,  8  Ex.  843 ' 468 

Walter  v.  James,  L.  R.  6  Ex.  124  (1891) 85 

Waltham  v.  Wakefield,  1  Camp.  120 66 

Wambole  v.  Foote,  2  Dak.  1,  2  N.  W.  239 95,  148 

Wanless  v.  McCandless,  38  Iowa,  20 398 

Waples  v.  Hastings,  3  Har.  (Del.)  403 94 

Ward  v.  Ryba,  58  Kan.  741,  51  Pac.  223 389 

v.  Smith,  7  Wall.  (U.  S.)  447,  19  L.  Ed.  207 149,  214 

v.  Warfield,  3  La.  Ann.  468 87 

v.  Williams,  26  111.  447,  79  Am.  Dec.  385 71 

Warder  v.  White,  14  111.  App.  50 307 

Warder,  Bushnell  &  Glessner  Co.  v.  Cuthbert,  99  Iowa,  681,  68 

N.  W.  917 68 

v.  Harris,  81  Iowa,  153,  46  N.  W.  859 380 

Wardrop  v.  Dunlop,  59  N.  Y.  634 212 

I  Hun  (N.  Y.)  325 212 

Ware  v.  Morgan,  67  Ala.  461 372 

Warfield  v.  Warfield,  76  Iowa,  633,  41  N.  W.  383 98 

Waring  v.  Richardson,  33  N.  C.  77.  % 432,  434 

Warner  v.  Martin,  11  How.  (U.  S.)  209,  223,  13  L.  Ed.  667 

118,  120,  121,  223 
v.  Pacific  Co.,  113  Cal.  105,  45  Pac.  187,  54  Am.  St.  Rep.  327  275 

Warr  v.  Jones,  24  W.  R.  695 374 

Warren  v.  Burt,  7  C.  C.  A.  105,  58  Fed.  101 423 

v.  Dickson,  27  111.  115 363 

v.  Holbrook,  95  Mich.  185,  54  N.  W.  712,  35  Am.  St.  Rep. 

554 436 

v.  Insurance  Co.,  16  Me.  439,  33  Am.  Dec.  674 31 

Warren  Bank  v.  Bank,  10  Gush.  (Mass.)  582 120,  131 

Warren-Scharf  Asphalt  Pav.  Co.  v.  Bank,  38  C.  C.  A.  108,  97 

Fed.  181  216 

Warrick  v.  Warrick,  3  Atk.  291 260 

Warwick  v.  Slade,  3  Camp.  127 456 

II  Camp.  127 136 

Washington  University  v.  Finch,  18  Wall.  (U.  S.)  106,  21  L.  Ed. 

818  151 

Waterson  v.  Rogers,  21  Kan.  529 65 

Watervliet  Bank  v.  White,  1  Denio  (N.  Y.)  608 351 

Watkins  v.  De  Armond,  89  Ind.  553 40,  41 

v.  Vince,  2  Stark.  368 107 


CASES   CITED.  579 

Page 
Watson  y.  Bank,  8  Mete.  (Mass.)  217,  41  Am.  Dec.  500 431 

v.  King,  4  Camp.  272  (1815) 144,  160,  161 

v.  Muirhead,  57  Pa.  161,  98  Am.  Dec.  213 409 

y.  Sherman,  84  111.  263 23 

v.  Swann,  11  C.  B.  (N.  S.)  756 54,  55,  57 

Watt  v.  Brookover,  35  W.  Va.  323,  13  S.  E.  1007,  29  Am.  St  Rep. 

811 229 

v.  Watt,  2  Barb.  Ch.  (N.  T.)  371 146 

Watteau  v.  Fen  wick  (1893)  1  Q.  B.  346.. 184,  189,  211,  216,  217,  237,  238 
Watts  T.  Howard,  70  Minn.  122,  72  N.  W.  840 184,  186,  188,  194 

v.  Kavanagh,  35  Vt.  34 139 

Weakley  v.  Pearce,  5  Heisk.  (Tenn.)  401 403 

Weare  v.  Gove,  44  N.  H.  196 369 

v.  Williams,  85  Iowa,  253,  52  N.  W.  328 169 

Weaver  v.  Carnall,  35  Ark.  198,  37  Am.  Rep.  22 119 

Webb  v.  Fuller,  77  Me.  568,  1  Atl.  737 43G 

v.  Paxton,  36  Minn.  532,  32  N.  W.  749 420 

Webber  v.  Williams  College,  23  Pick.  (Mass.)  302 211,  215 

Weber  v.  Bridgman,  113  N.  Y.  600,  21  N.  E.  985 145 

v.  Weber,  47  Mich.  569,  11  N.  W.  389 382 

Webster  v.  De  Taset,  7  T.  R.  157 404 

v.  Wray,  17  Neb.  579,  24  N.  W.  207 37 

Weed  v.  Adams,  37  Conn.  378 /. 404 

v.  Railroad  Co.,  17  N.  Y.  362,  72  Am.  Dec.  474 272 

Weeks  v.  Holmes,  12  Gush.  (Mass.)  215 442 

v.  Propert,  L.  R.  8  C.  P.  427 370 

Weile  v.  U.  S.,  7  Ct.  Cl.  535 137 

Weir  v.  Barnett,  3  Ex.  D.  238 385 

v.  Bell,  3  Ex.  D.  238,  244 285 

Weisbrod  v.  Railroad  Co.,  18  Wis.  35,  86  Am.  Dec.  743 102 

Weiss  v.  Whittemore,  28  Mich.  366 394 

Welch  v.  Hoover,  5  Cranch,  C.  C.  444,  Fed.  Cas.  No.  17,368 20 

v.  Welch,  103  Mass.  562 96 

Wellford  v.  Chancellor,  5  Grat.  (Va.)  39 420 

Wellington  v.  Jackson,  121  Mass.  157 .' 51 

Wells  v.  Collins,  74  Wis.  341,  43  N.  W.  160,  5  L.  R.  A.  531 436 

T.  Cook,  16  Ohio  St  67,  88  Am.  Dec.  436 283 

v.  Hickox,  1  Kan.  App.  485,  40  Pac.  821 61 

v.  Masterman,  2  Esp.  731 354 

Welsh  v.  Cochran,  63  N.  Y.  181,  20  Am.  Rep.  519 282 

Westerman  v.  Evans,  1  Kan.  App.  1,  41  Pac.  675 261 

Western  Bank  v.  Addie,  L.  R.  1  Sc.  &  D.  Cas.  145 288 

Western  Maryland  R.  Co.  v.  Bank,  60  Md.  36 ,.  293 


580  CASES  CITED. 

Page 

Western  Pub.  House  v.  District  Tp.,  84  Iowa,  101,  50  N.  W.  551. .     55 

Western  Transp.  Co.  v.  Barber,  56  N.  Y.  544 424,  425 

Westgate  v.  Monroe,  100  Mass.  227 442 

West  London  Com.  Bank  v.  Kitson,  13  Q.  B.  D.  360 371,  373 

Weston  v.  Davis,  24  Me.  374 442 

West  St.  Louis  Sav.  Bank  v.  Bank,  95  U.  S.  557,  24  L.  Ed.  490. ... 

220,  221 

Westurn  v.  Page,  94  Wis.  251,  68  N.  W.  1003 207 

Westwood  v.  Bell,  4  Camp.  349 465,  475 

Wetherbee  v.  Fitch,  117  111.  67,  7  N.  E.  513 229 

Weyerhauser  v.  Dun,  100  N.  Y.  150,  2  N.  E.  274 132 

Weymouth  v.  Boyer,  1  Ves.  Jr.  416 470 

Wheeler  v.  Benton,  67  Minn.  293,  69  N.  W.  927 33 

V.  Haskins,  41  Me.  432 435 

v.  McGuire,  86  Ala.  398,  5  South.  190,  2  L.  R.  A.  808 

138,  184,  211 

V.  Nevins,  34  Me.  54 23 

v.  Reed,  36  111.  82 362 

v.  Sleigh  Co.  (C.  C.)  39  Fed.  347 73,  75,  202 

v.  Walden.  17  Neb.  122,  22  N.  W.  346 357 

Wheeler  &  Wilson  Mfg.  Co.  v.  Aughey,  144  Pa.  398,  22  Atl.  667, 

27  Am.  St.  Rep.  638 65 

v.  Boyce,  36  Kan.  350,  13  Pac.  609,  59  Am.  Rep.  571 275 

v.  Givan,  65  Mo.  89 207 

Whelan  v.  Reilly,  61  Mo.  565 213,  214 

White  v.  Chouteau,  10  Barb.  (N.  Y.)  202 389 

v.  Dolliver,  113  Mass.  400,  18  Am.  Rep.  502 316 

v.  Duggan,  140  Mass.  18,  2  N.  E.  110,  54  Am.  Rep.  437 24 

v.  Leighton,  15  Neb.  424,  19  N.  W.  478 38 

v.  Lincoln,  8  Ves.  Jr.  363 455 

V.  Madison,  26  N.  Y.  117 369,  370,  374 

v.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13 248-250 

V.  Railroad  Co.,  90  Ala.  254,  7  South.  910 465 

v.  Sanders,  32  Me.  188 66 

v.  Sawyer,  16  Gray  (Mass.)  586 287 

v.  Smith,  6  Lans.  (N.  Y.)  5 142 

Wbitehead  v.  Greetham,  2  Bing.  464 410 

v.  Reddick,  34  N.  C.  95 333 

v.  Taylor,  10  A.  &  E.  210 89 

v.  Tuckett,  15  East,  400 184,  190 

v.  Wells,  29  Ark.  99 58 

Whiteley,  Partners,  Limited,  In  re,  32  Ch.  D.  337 91 

Whiteman  v.  Hawkins,  4  C.  P.  D.  13 407 


CASES   CITED.  581 

Page 

Whiteside  Y.  U.  SM  93  U.  S.  247,  23  L.  Ed.  882 201,  202 

Whitford  v.  Laidler.  94  N.  Y.  145,  46  Am.  Rep.  131 338 

Whiting  v.  Insurance  Co.,  129  Mass.  240,  37  Am.  Rep.  317 83 

v.  Saunders,  23  Misc.  Rep.  332,  51  N.  Y.  Supp.  211 364 

v.  William  H.  Crawford  Co.,  93  Md.  390,  49  Atl.  615 392 

Whitlock  v.  Hicks,  75  111.  460 127 

Whitman  v.  Horton,  94  N.  Y.  644 473 

46  N.  Y.  Super.  Ct.  531 473 

Whitmarsh  v.  Hall,  3  Demo  (N.  Y.)  375,  376 107,  453 

Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229 96,  97 

v.  Esson,  99  Mass.  308,  96  Am.  Dec.  762 178 

v.  Express  Co.,  104  Mass.  152,  6  Am.  Rep.  207 396 

y.  Martine,  88  N.  Y.  535 405,  408 

T.  Wjman,  101  U.  S.  392,  393,  25  L.  Ed.  1050. .  .56,  181,  357,  361 

Whittingham's  Case,  8  Co.  42b 95 

Wichita  Sar.  Bank  v.  Railroad  Co.,  20  Kan.  519 201 

Wickersham  v.  Zinc  Co.,  18  Kan.  481,  26  Am.  Rep.  784 264 

Wickham  v.  Wickham,  2  Kay.  &  J.  487 438 

Wicks  v.  Hatch,  62  N.  Y.  535 126 

Widrig  v.  Taggart,  51  Mich.  103,  16  N.  W.  251 107,  453 

Wiehle  v.  Safford,  27  Misc.  Rep.  562,  58  N.  Y.  Supp.  298 307 

Wiener  v.  Whipple,  53  Wis.  298,  302,  10  N.  W.  433,  40  Am.  Rep. 

775    29 

Wilcox  v.  Railroad  Co.,  24  Minn.  269 33 

v.  Todd,  64  Mo.  390 102 

Wild  v.  Bank,  3  Mason  (U.  S.)  505,  Fed.  Gas.  No.  17,646 220 

Wiley  v.  Logan,  95  N.  C.  358 * 433 

96  N.  C.  510,  2  S.  E.  598 431 

v.  Moor,  17  Serg.  &  R.  (Pa.)  438,  17  Am.  Dec.  696 25 

Wilkins  v.  Duncan,  2  Litt.  (Ky.)  168 462 

v.  McGehee,  86  Ga.  764,  13  S.  E.  84 158 

Wilkinson  v.  Coverdale,  1  Esp.  75 18,  19,  402 

v.  Harwell,  13  Ala.  660 62 

v.  King,  2  Camp.  335 206 

v.  Martin,  8  C.  &  P.  1 446 

Wilks  v.  Back,  2  East,  142 333 

Willcox  v.  Arnold,  162  Mass.  577,  39  N.  E.  414 112 

Williams  v.  Bank,  83  Ind.  237 339 

v.  Bemis,  108  Mass.  91,  11  Am.  Rep.  318 30 

T.  Birbeck,  Hoff.  Oh.  (N.  Y.)  360 139 

v.  Cochran,  7  Rich.  Law  (S.  C.)  45 172 

v.  Crutcher,  6  How.  (Miss.)  71 24 

T.  Evans,  L.  R.  1  Q.  B.  352 .  227 


582  CASES  CITED. 

Page 

Williams  T.  Everett,  14  East,  582 379 

v.  Getty,  31  Pa.  461,  72  Am.  Dec.  757 175,  184,  190 

V.  Higgins,  30  Md.  404 19,  402 

T.  Innes,  1  Camp.  364 248 

v.  Insurance  Co.,  1  C.  P.  D.  757 83 

T    Lumber  Co.,  118  N.  C.  928,  24  S.  E.  800 66 

v.  McKay,  40  N.  J.  Eq.  189,  53  Am.  Rep.  775 413 

v.  Millington,  1  H    Bl.  81 226,  389 

v.  Paine,  169  U.  S.  55,  18  Sup.  Ct.  279,  42  L.  Ed.  658 

103,  104,  150 

7  App.  D.  C.  116 103 

T.  Poor,  3  Cranch,  C.  C.  (U.  S.)  251,  Fed.  Cas.  No.  17,732. ...  226 

T.  Railroad  Co.,  93  N.  C.  42,  53  Am.  Rep.  450 200 

V.  Robbins,  16  Gray  (Mass.)  77,  77  Am.  Dec.  396 245,  339,  348 

T.  School  Dist.,  21  Pick.  (Mass.)  75,  32  Am.  Dec.  243 114,  115 

v.  Stevens,  L.  R.  1  P.  C.  352 423 

Y.  Storrs,  6  Johns.  Ch.  (N.  Y.)  353,  10  Am.  Dec.  340.  .432,  434,  435 

v.  Walker,  2  Sandf.  Ch.  (N.  Y.)  325 213,  214 

v.  Williams,  55  Wis.  300,  12  N.  W.  465,  13  N.  W.  274,  42  Am. 

Rep.  708  430 

T.  Wood,  16  Md.  220 119 

Williamson  v.  Barton,  7  H.  &  N.  899 362,  363 

v.  Railroad  Co.,  144  Mass.  148,  10  N.  E.  790 256 

Willingham  v.  Rushing,  105  Ga.  72,  31  S.  E.  130 157 

Willis  v.  Sanitation  Co.,  53  Minn.  370,  55  N.  W.  550 68 

Wilson  v.  Ass'n,  36  Minn.  112,  30  N.  W.  401,  1  Am.  St.  Rep.  659. .  261 

V.  Bank,  187  111.  222,  58  N.  E.  250,  52  L.  R.  A.  632 129 

V.  Brett,  11  M.  &  W.  113 412,  413 

v.  Dame,  58  N.  H.  392 86 

v.  Harris,  21  Mont.  374,  54  Pac.  46 149 

v.  Hayes,  40  Minn.  531,  42  N.  W.  467,  4  L.  R.  A.  196,  12  Am. 

St.  Rep.  754 51 

V.  Russ,  20  Me.  421 405,  409 

v.  Smith,  3  How.  (U.  S.)  763,  11  L.  Ed.  820 128,  427 

v.  Tumman,  6  M.  &  G.  236 54,  55 

T.  Wilson,  26  Pa.  393 397,  399 

v.  Wilson-Rogers,  181  Pa.  80,  37  Atl.  117 169 

Wilson  &  Greig,  In  re   ('D.  C.)  12  Fed.  235 467 

Wilts  v.  Morrell,  66  Barb.  (N.  Y.)  511 400 

Wiltshire  v.  Sims,  1  Camp.  258 202,  207,  224,  400 

Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  93 306,  307 

Wing  v.  Glick,  56  Iowa,  473,  9  N.  W.  384,  41  Am.  Rep.  118 355 

Wing  v.  Neal  (Me.)  2  Atl.  881.- 223 


CASES   CITED.  583 

Page 

Winn  v.  Dillon,  27  Miss.  494 420 

Winne  v.  Insurance  Co.,  91  N.  Y.  185 173 

\Vinningham  v.  Fancher,  52  Mo.  App.  458 436 

Winona  L.  Co.  v.  Church,  6  S.  D.  498,  62  N.  W.  107 Ill 

Winsor  v.  Griggs,  5  Gush.  (Mass.)  210 363 

Winter  v.  Colt,  7  N.  Y.  288,  57  Am.  Dec.  522 466 

Wiser  v.  Mining  Co.,  94  111.  App.  471 309 

Wishard  v.  McNeill,  85  Iowa,  474,  52  N.  W.  474 211 

Witcher  r.  Gibson,  15  Colo.  App.  163,  61  Pac.  192 35 

Witherell  v.  Murphy,  147  Mass.  417,  18  N.  E.  215 451 

Witherington  v.  Herring,  5  Bing.  442 170 

Withington  v.  Herring,  5  Bing.  442,  458 168 

Witman  v.  Felton,  28  Mo.  601 424 

Witt,  In  re,  2  Ch.  D.  489 465 

Wittenbrock  v.  Bellraer,  57  Cal.  12 81 

Wolfe  v.  Findlay,  6  Hare,  66 434 

v.  Home,  2  Q.  B.  D.  355 389,  465 

v.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388 452,  453 

v.  Pugh,  101  Ind.  293 287,  288 

Wolff  v.  Koppel,  2  Denio  (N.  Y.)  368,  43  Am.  Dec.  751 438 

5  Hill    (N.  Y.)  458 438 

Wood  v.  Brewer,  66  Ala.  570 442 

v.  Cobb,  13  Allen  (Mass.)  58 269 

v    Goodridge,  6  Cush.  (Mass.)  117,  52  Am.  Dec.  771.  .168,  171,  333 

v.  McCain,  7  Ala.  800,  42  Am.  Dec.  612 77,  171,  173 

v.  Rowcliffe,  6  Hare,  183 319 

Woodbury  Sav.  Bank  &  Building  Ass'n  v.  Insurance  Co.,  31  Conn. 

517    218 

Woodman  v.  Davis,  32  Kan.  344,  4  Pac.  262 422 

Wood  Mowing  Mach.  Co.  v.  Crow,  70  Iowa,  340,  30  N.  W.  609..197,  208 

Woodruff  v.  McGehee,  30  Ga.  158 304 

v.  Munroe,  33  Md.  146 54 

Woods  v.  Hart,  50  Neb.  497,  70  N.  W.  53 154 

Woodward  v.  Barnes.  43  Vt  330 40 

v.  Harlow,  28  Vt  338 62 

v.  Suydam,  11  Ohio,  360 87 

v.  Washburn,  3  Denio  (N.  Y.)  369 328 

Woonsocket  Inst  for  Savings  v.  Worsted  Co.,  13  R.  I.  255 108 

Workman  v.  Wright,  33  Ohio  St.  405,  31  Am.  Rep.  546 50 

Worrail  v.  Munn,  5  N.  Y.  229,  238,  55  Am.  Dec.  330 23,  63 

Worsley  v.  Earl  of  Scarborough,  3  Atk.  392 260,  262 

Worthington  v.  Cowles,  112  Mass.  30 363 

Wren  v.  Keiton,  11  Vea.  377 430 


584  CASES  CITED. 

Page 

Wright  v.  Banking  Co.,  16  Ga.  38 405 

v.  Boynton,  37  N.  H.  9,  72  Am.  Dec.  319 : 117 

V.  Cabot,  89  N.  Y.  570 310 

v.  Dannah,  2  Camp.  203 108 

v.  Baton,  7  Wis.  595 380 

T.  Solomon,  19  Cal.  64,  79  Am.  Dec.  196 223 

v.  Vinyard  Church,  72  Minn.  78,  74  N.  W.  1015 66 

Wylde  v.  Radford,  33  I*  J.  Ch.  51 469 

Wylie  v.  Bank,  61  N.  Y.  415 446 

Wylie  v.  Pollen,  32  L.  J.  Ch.  782 262 

Wyman  v.  Smith,  2  Sandf.  (N.  Y.)  331 379 

Y 

Yale  Y.  Eames,  1  Mete.  (Mass.)  486 215 

Yates  v.  Arden,  5  Cranch,  C.  C.  (U.  S.)  526,  Fed.  Gas.  No.  18,126. .  429 

v.  Repetto,  65  N.  J.  Law,  294,  47  Atl.  632 238 

Yeoman  v.  Lasley,  40  Ohio  St.  190 229 

Yerby  v.  Grigsby,  9  Leigh  (Va.)  387 29 

Yerger  v.  Barz,  56  Iowa,  77,  8  N.  W.  769 261 

Yerrington  v.  Greene,  7  R.  I.  589,  84  Am.  Dec.  578 145,  452 

Ye  Seng  Co.  v.  Corbitt  (D.  C.)  9  Fed.  423 363 

York  County  Bank  v.  Stein,  24  Md.  447 243,  362 

Young  v.  Cole,  3  Bing.  N.  C.  724 178 

v.  Hughes,  32  N.  J.  Eq.  372 229 

v.  Schuler,  11  Q.  B.  D.  651 359 

z 

Zachrisson  v.  Ahman,  2  Sandf.  68 „  321 

Zaluta  v.  Vinent,  1  DeG.,  M.  &  G.  315 424 

Zerrahn  v.  Ditson,  117  Mass.  553 441 

Ziegler  v.  Fallen,  28  Mo.  App.  295 360 

Zimpleman  v.  Keating,  72  Tex.  318,  12  S.  W.  177 63 

Zottman  v.  San  Francisco,  20  Cal.  96,  81  Am.  Dec.  96 49 

Zouch  v.  Parsons,  3  Burr.  1794,  1805,  1808 95 

Zuck  v.  Gulp,  59  Cal.  142 .  431 


INDEX. 

[THE  FIGURES  REFER  TO  PAGES.! 


A 

ACCEPTANCE, 

of  offer,  whether  may  be  withdrawn  before  ratification,  84. 

ACCEPTOR, 

of  bill,  agent  as,  352. 

ACCOUNT, 

duty  of  agent  to,  426. 
see  "Agent." 

ACKNOWLEDGMENT  OF  DEBT, 

by  agent,  when  principal  bound,  251. 

when  interrupts  statute  of  limitations,  251. 

ACQUIESCENCE, 
see  "Ratification." 

ACTUAL  AUTHORITY, 

see  "Authority  of  Agent** 

ADMISSION  BY  AGENT, 

when  admissible  against  principal,  247,  248. 
declarations,  when  part  of  res  gestae,  252. 
admissions,  incompetent  to  prove  agency,  247,  258. 

ADVERSE  INTEREST, 

agent  may  not  assert,  415. 

AGENCY, 
defined,  3. 
basis  of  law  of,  10. 
creation  of  relation,  15. 

by  appointment,  see  "Appointment  of  Agent.** 

by  estoppel,  see  "Estoppel." 

by  necessity,  see   "Necessity." 

by  ratification,  see  "Ratification." 
termination  of,  see  "Termination  of  Agency.** 
TIFF.P.&  A.  (585) 


586  INDEX. 

[The  figures  refer  to  pages.] 
AGENT, 

defined,  broadest  sense,  1. 

narrower  sense,  1. 
distinguished  from  servant,  5,  9. 
classes  of  agents,  12. 
what  acts  can  be  done  by,  90. 
universal,  general,  and  special,  190. 
public,  see  "Public  Agent." 
to  sell,  personalty,  204. 

realty,  210. 
to  purchase,  211. 
to  collect,  212. 

to  execute  commercial  paper,  215. 
to  manage  business,  216. 
insurance  agent,  218. 
bank  cashier,  220. 
shipmaster,  221. 
factor,  222. 
broker,  224. 
auctioneer,  225. 
attorney  at  law,  227. 

tort  of,  liability  of  principal  for,  see  "Principal.** 
employment  as  servant  and  agent,  277. 
crime  of,  liability  of  principal  for,  see  "Principal.** 
mercantile,  12,  322,  note  33. 
liability  to  third  person,  330-385. 
liability  on  contract,  330. 
nature  of  contract,  331. 

instrument  under  seal,  332. 
negotiable  instrument,  336. 

parol  evidence  to  determine  whether  principal 

or  agent  is  party,  337,  338. 
when  principal  bound,  341. 
Indications  on  face  of  paper,  headings,  344. 
signature  by  corporation,  346. 
when  agent  bound.  347. 

acting    without    authority,    Negotiable    Instru- 
ments Law,  349. 

agent  as  payee  and  indorser,  349. 
cashier  of  bank,  officer  of  corporation,  351. 
agent  as  acceptor  of  bill,  352. 
public  agents,  354. 


INDEX.  587 

[The  figures  refer  to  pages.] 
AGENT— Confd. 

contract  not  sealed  or  negotiable,  355. 
written  contract,  355,  356. 

parol  evidence,  356,  360. 
oral  contract,  356,  361. 
principal  undisclosed  or  unnamed.  362. 
credit  to  agent,  when  he  only  bound,  355,  364. 
foreign  principal,  355,  365. 
public  agent,  356,  367. 
professed  agent  real  principal,  356,  367. 
liability  when  contract  unauthorized,  368. 
warranty  of  authority,  368,  369. 
principal  incapable,  371. 
when  circumstances  negative  warranty,  372. 
measure  of  damages,  368,  373. 
no  principal  in  existence,  374. 
liability  on  quasi  contract,  376. 

money  received  in  good  faith,  376. 
money  obtained  wrongfully,  376,  378. 

liability  for  money  received  from  principal  for  third  per- 
son, 378. 

liability  for  torts,  379. 
misfeasance.   380. 
nonfeasance,  380,  382. 
subagents  and  co-agents,  385. 
liability  to  principal,  395-438. 

duties  of  agent  to  principal,  in  general,  395. 
duty  to  act  in  person,  396. 
duty  to  obey  instructions,  396. 

implied  instructions,  usage,  397. 
liability  for  disobedience,  measure  of  damages,  398. 
illustrations,  399. 
liability  for  conversion,  401. 
gratuitous  agent.  402. 

Justification  for  failure  to  obey  instructions,  emer- 
gency, impossibility,  396,  402. 
factor,  right  to  sell  for  advances,  396,  403. 
illegal  act,  396,  404. 
ambiguous  instructions,  404. 
duty  to  exercise  skill,  care  and  diligence,  404. 
liability  for  negligence,  damages,  407. 
illustrations,  407. 
gratuitous  agent,  410. 


588  INDEX. 

[The  figures  refer  to  pages.] 
AGENT— Cont'd. 

duty  to  act  in  good  faith.  415. 
in  general,  415. 
acting  as  party  and  agent,  416. 

knowledge  and  consent  of  principal,  41& 
acting  as  agent  for  both  parties,  418. 
acquiring  adverse  interest,  420. 
may  not  make  profit,  422. 
may  not  deny  principal's  title,  424. 
duty  to  give  notice,  426. 
duty  to  account,  426. 
in  general,  427. 

duty  to  keep  and  render  accounts,  428. 
duty  to  keep  property  separate,  429. 
duty  to  pay  over  and  deliver,  430. 
necessity  of  demand,  432. 
statute  of  limitations,  434. 
form  of  action,  accounting  in  equity,  435, 
del  credere  agent,  437. 
Hen  of,  see  "Lien." 
right  of  stoppage  in  transitu,  see  "Stoppage  in  Transitn." 

see  "Agency";  "Authority  of  Agent";  "Parties." 
ALIEN, 

see  "Parties." 
AMBIGUOUS  AUTHORITY,  168,  173,  404. 

APPARENT  AUTHORITY, 
see  "Authority  of  Agent." 

APPOINTMENT  OF  AGENT, 

creation  of  relation  by,  15,  16. 
form  of  appointment,  20. 
'n  general,  20. 
appointment  to  execute  instrument  under  seal,  20,  21. 

authority  to  fill  blanks,  23. 

appointment  to  execute  writings  not  under  seal,  stat- 
ute of  frauds,  28. 
appointment  by  corporation,  30. 
implied  appointment,  32. 

see  "Estoppel";   "Necessity";   "Ratification." 
ATTORNEY  AT  LAW, 

authority  of,  227. 
AUCTIONEER, 

authority  of,  225. 


INDEX.  589 

[The  figures  refer  to  pages.] 

AUTHORITY  COUPLED  WITH  AN  INTEREST, 
see  "Termination  of  Agency." 

AUTHORITY  OF  AGENT, 
bow  derived,  4. 

see  "Agency." 

revocation  of,  see  "Termination  of  Agency." 
construction  of,  in  general,  166. 

express  authority,  power  of  attorney,  167. 

parol  evidence,  171. 
Informal  authority,  168,  172. 
ambiguous  authority,  168,  173. 

express  authority,  incidental  powers  implied,  174,  175. 
powers,  implied  from  usage,  174. 

usages  of  particular  business,  177. 
usages  of  particular  agencies,  179. 
actual,  180,  182. 
apparent,  180.  183. 
estoppel,  183. 

when  principal  is  bound  independently  of  estoppel,  183. 
Illustrations,  184. 
basis  of  liability,  187. 
general  and  special  agents,  190. 
notice  of  limitations  upon,  194. 

condition  of  exercise  of  power  peculiarly  within  knowl- 
edge of  agent,  estoppel,  199. 
public  agent,  201. 

liability  of  principal  for  contract  beyond  scope  of,  202. 
scope  of,  in  particular  agencies,  203. 
agent  to  sell  personalty,  204. 

realty,  210. 

agent  to  purchase,  211. 
agent  to  execute  commercial  paper,  211, 
agent  to  manage  business,  216. 
Insurance  agent,  218. 
bank  cashier,  220. 
factor,  222. 
broker,  224. 
auctioneer,  225. 
attorney  at  law,  227. 

admissions  of  agent  Incompetent  to  prove,  247,  250. 
warranty  of,  368. 
see  "Agent." 


690  INDEX. 

[The  figures  refer  to  pages.] 

B 

BANK, 

as  agent,  deposit  for  collection,  128. 
authority  of  cashier,  220. 
lien  of,  466. 

see  "Cashier." 

BANKRUPTCY, 

see  "Termination  of  Agency." 

BARTER, 

agent  to  sell  not  authorized  to,  207,  223, 

BILL  OF  LADING, 

fictitious,  liability  of  principal  on,  200,  294. 

BROKER, 

authority  of,  224. 

c 

CAPACITY, 

see  "Parties." 

CARE, 

duty  of  agent  to  exercise,  see  "Agent1* 

CASHIER, 

of  bank,  authority  of,  220. 

negotiable  instrument  payable  to,  337,  351. 

see  "Bank." 
CHILD, 

agency  of,  see  "Necessity,"  "Infant." 

COLLECT, 

agent  to,  authority  of,  212. 
see  "Payment." 

COLLUSION, 

of  third  person  and  agent,  229,  328. 

COMMAND, 

liability  for  act  commanded,  268,  280. 

COMMERCIAL  PAPER, 

see  "Negotiable  Instrument," 

COMMISSION, 

see  "Remuneration." 

COMPENSATION, 

see  "Remuneration." 


INDEX.  591 

[The  figures  refer  to  pages.] 
CONSTITUENT, 
meaning  of,  4. 

CONSTRUCTION  OP  AUTHORITY, 
see  "Authority  of  Agent" 

CONTRACT, 

of  agency,  16. 

by  agent,  liability  of  principal  on,  see  "Principal.'' 
liability  of  agent  on,  see  "Agent." 
see  "Parties  to  Contracts." 

CONTRACT  UNDER  SEAL, 
see  "Sealed  Instrument." 

CONVERSION, 

liability  of  third  person  to  principal  for,  315. 
liability  of  agent  to  third  person  for,  380. 
liability  of  agent  to  principal  for,  401. 

CORPORATION, 

appointment  of  agent  by,  30. 

ratification  of  contract  of  promoters  of,  56L 

capacity  to  appoint  agent,  104. 

notice  to,  266. 

execution  of  negotiable  instrument,  346. 

negotiable  instrument  payable  to  officer  of,  337,  861. 

COURSE  OF  EMPLOYMENT, 
see  "Master." 

CRIMES, 

of  agent,  liability  of  principal  for,  see  "Principal." 

CUSTOM, 

see  "Usage.1* 

D 

DAMAGES, 

liability  of  master  for  exemplary  damages,  274. 
for  breach  of  agent's  warranty  of  authority,  368,  37S. 
In  action  by  agent  against  third  person  on  contract,  391, 
In  action  by  principal  for  agent's  disobedience,  398. 
in  action  by  principal  for  agent's  negligence,  407. 

DEATH, 

of  principal,  liability  of  agent,  375. 
see  "Termination  of  Agency." 

DECEIT, 

of  agent,  liability  of  principal  for,  see  "Principal." 


592  INDEX. 

{The  figures  refer  to  pages.] 
DECLARATION, 

of  agent,  when  part  of  res  gestse,  252. 

see  "Admission  by  Agent." 
DEED, 

see  "Sealed  Instrument" 

DEFENSES, 

of  third  person  against  disclosed  principal,  302. 
of  third  person  against  undisclosed  principal,  304, 
of  third  person  against  agent,  386,  390. 

DEL  CREDERE  AGENT,  437. 

DELEGATA  POTESTAS  NON  POTEST  DELEGARI,  118. 

DELEGATION  BY  AGENT, 
delegation  of  authority,  116. 

delegata  potestas  non  potest  delegarl,  116. 
when  authority  to  delegate  will  be  implied,  117. 

distinction  between  discretionary  and  ministerial  acts,  117. 
•when  power  will  be  implied,  119. 
unforeseen  emergencies,  121. 

responsibility  for  acts  of  subagent,  privity  of  contract,  123. 
when  authority  to  create  privity  of  contract  will  be  implied, 

126. 

bank  as  agent,  deposit  for  collection,  128. 
attorney  for  collection,  131. 

see   "Subagent." 
DEMAND, 

when  prerequisite  to  agent's  duty  to  pay  and  deliver,  432. 

DEPUTY, 

see  "Subagent." 

DILIGENCE, 

duty  of  agent  to  exercise,  see  "Agent." 

DISCRETIONARY  ACT, 

see  "Delegation  by  Agent." 

DOCUMENTARY  EVIDENCE  OF  TITLE, 
intrusting  with,  204,  317. 
see  "Factors'  Acts." 

DRUNKEN  MAN,    ' 
see  "Parties." 

DUTIES, 

of  agent  to  principal,  see  "Agent." 
of  principal  to  agent,  see  "Principal." 


INDEX.  593 

• 

[The  figures  refer  to  paces.] 

ELECTION, 

to  ratify  or  disaffirm  unauthorized  act,  47. 
of  the  other  party  to  contract  to  bold  agent  of  undisclosed  prin- 
cipal, 235,  238. 

EMERGENCY, 

effect  of  upon  duty  of  agent  to  obey  Instructions,  402. 
see  "Delegation  by  Agent." 

ESTOPPEL, 

agency  by,  15,  34. 

Illustrations,  36. 

to  deny  continuance  of  agency,  138,  181, 
apparent  authority,  estoppel,   183. 

when  principal  bound  Independently  of  estoppel,  188. 
condition  of  exercise  of  power  peculiarly  within  knowledge  of 

agent,  199. 

none  from  intrusting  with  possession,  204,  317. 
when  to  deny  authority  to  sell,  205. 
fraud  of  agent,  when  principal  estopped,  276,  290. 
when  to  deny  authority  to  dispose  of  property,  315,  317. 

EVIDENCE, 

parol,  inadmissible  to  vary  written  authority,  171. 

admissible  to  charge  undisclosed  principal,  231,  233. 
whether  admissible  to  determine  whether  principal  or  agent 

party  to  negotiable  instrument,  337,  338. 
whether  admissible  to  determine  whether  principal  or  agent 

party  to  written  contract,  356,  360. 
admission  of  agent,  see  "Admission." 

EXECUTION  OF  INSTRUMENTS, 
see  "Parties  to  Contracts." 


FACTOR, 

authority  of,  222. 

right  to  sell  for  advances,  403. 

lien  of,  4G6. 

FACTORS'  ACTS, 

in  general,  315,  317. 
English  acts,  318. 
American  acts,  320. 
TIFF.P.&  A.— 38 


594  INDEX. 

[The  figures  refer  to  pages.] 
FACTORS'  ACTS— Oont'd. 

New  York  act,  appendix,  477. 

English  act  1889,  appendix,  479. 

FALSE  IMPRISONMENT, 

by  agent,  liability  of  principal  for,  278. 

FALSE  REPRESENTATIONS, 
effect  on  contract,  282. 
see  "Fraud." 

FATHER, 

when  liable  for  necessaries  furnished  to  child,  41. 

FIDUCIARY  RELATION, 

between  agent  and  principal,  416. 

FOREIGN  PRINCIPAL, 

liability  of  when  undisclosed,  246. 
whether  principal  or  agent  liable,  355,  365. 

FORGERY, 

ratification  of,  48,  50. 

FRAUD, 

of  agent,  liability  of  principal  to  third  person,  275,  282. 
of  third  person,  liability  to  principal,  326. 
of  agent,  liability  to  third  person,  376. 
of  agent,  liability  to  principal,  415. 
see  "Collusion." 

FRAUDS,  STATUTE  OF, 
see  "Statute  of  Frauds." 

G 

GAMBLING  CONTRACT, 

money  paid  by  third  person  to  agent  on,  814. 

GENERAL  AGENT, 

distinguished  from  special,  190. 

GOOD  FAITH, 

duty  of  agent  to  exercise,  see  "Agent." 

GRATUITOUS  AGENT, 
liability  to  principal,  18. 
duty  to  obey  instructions,  402. 
duty  to  exercise  skill,  care  and  diligence,  410. 
when  no  promise  to  remunerate  implied,  443. 

GROSS  NEGLIGENCE,  412. 


INDEX.  595 

IThe  flgurei  refer  to  page*.  J 

U 

HOLDING  GUI, 

see  "Estoppel.1* 

HUSBAND, 

when  liable  for  necessaries  furnished  to  wife,  40. 


IDENTITY, 

fiction  of,  11. 

ILLEGALITY, 

of  object,  effect  on  contract  of  agency,  90,  91. 
of  act  directed,  justification  for  agent's  disobedience,  396,  402. 
right  of  agent  to  be  remunerated,  reimbursed,  and  indemnified 
in  illegal  transaction,  459. 

INCAPACITY, 

of  principal,  liability  of  agent,  871, 
see  "Parties." 

INCIDENTAL  POWERS, 
see  "Authority  of  Agent." 

INDEMNIFICATION, 

duty  of  principal  to  Indemnify  agent,  see  "Principal." 

INDEPENDENT  CONTRACTOR,  6,  270. 
INDICIA  OF  TITLE, 

Intrusting  with,  204,  317. 
see  "Factors'  Acts." 

INFANT, 

agency  of  child,  see  "Necessity." 

ratification  by,  59. 

power  to  appoint  agent,  94. 

power  to  act  as  agent,  107. 
INSANITY, 

see  "Parties";   "Termination  of  Agency.** 
INSTRUCTIONS, 

duty  of  agent  to  obey,  see  "Agent." 
INSURANCE  AGENT, 

authority  of,   218. 

IRREVOCABLE  AUTHORITY, 
see  "Termination  of  Agency." 


590  INDEX. 

[The  figures  refer  to  page*.] 

J 

JOINT  AGENTS, 
In  general,  112. 
public  agents,  114. 

JOINT  PRINCIPALS, 
in  general,   110. 
partnership,  111. 
voluntary  association,  111. 

K 

KNOWLEDGE, 

of  principal,  effect  on  ratification,  61. 
of  agent,  when  imputed  to  principal,  267. 
see  "Notice." 

L 

LIABILITY, 

of  principal  to  third  person,  see  "Principal.** 

of  third  person  to  principal,  see  "Third  Person.*1 

of  agent  to  third  person,  see  "Agent." 

of  third  person  to  agent,  see  "Third  Person." 

of  principal  to  agent,  see  "Principal." 

of  agent  to  principal,  see  "Agent" 

LIBEL, 

liability  of  principal  for  agent's,  278,  297. 

LIEN, 

of  agent,  464. 

particular  lien,  464. 

general  lien,  464. 

lien  particular  or  general,  464* 

lien  possessory,  464. 

property  must  be  in  lawful  possession,  467. 

possession  must  be  acquired  in  same  capacity, 

no  inconsistent  agreement,  469. 

ownership  of  principal,  470. 

for  what  obligation  lien  attaches,  471. 

termination  of  lien,  472. 

how  enforced,  473. 
Of  subagent,  474. 

LIMITATION, 

upon  apparent  authority,  180,  194. 


INDEX.  597 

[The  figures  refer  to  page*.] 
LIMITATIONS,  STATUTE  OF, 

when  acknowledgment  of  debt  by  agent  Interrupts,  251. 
when  action  accrues  for  money  received  by  agent,  434. 
lien  of  agent  does  not  cease  when  debt  barred  by,  473. 

LOSS  OF  SERVICE, 

caused  by  wrongful  act  of  third  person,  828, 

LUNATIC, 

ratification  by,  59. 

power  to  appoint  agent,  98. 

power  to  act  as  agent,  106. 

see  "Termination  of  Agency.*1 

M 

MALICIOUS  PROSECUTION, 

by  agent,  liability  of  principal  for,  278. 

MARRIAGE, 

see  "Termination  of  Agency." 

MARRIED  WOMAN, 

see  "Parties." 
MASTER, 

distinguished  from  principal,  5. 
liability  of  for  tort  of  servant,  209. 

course  of  employment,  270. 

furtherance  of  employment,  271. 

ground  of  liability,  12,  274. 
liability  of  for  crime  of  servant,  297. 

in  general,  297. 

servant's  act  of  evidence  of  authority,  288. 

negligence,  299. 

statutory  offenses,  300. 
duties  to  servant,  439. 

MINISTERIAL  ACT, 

see  "Delegation  by  Agent." 

MISTAKE  OF  FACT, 

money  paid  by  agent  under,  liability  of  third  person,  314. 
money  paid  to  agent  under,  liability  of  agent,  376. 

MIXING, 

by  agent  of  principal's  property  with  his  own,  429. 

see  "Trust  Funds." 
MONEY, 

paid  by  agent  to  bona  flde  purchaser,  314,  315. 


698  INDEX. 

.     [The  figures  refer  to  pages.] 


NECESSITY, 

agency  by,  39. 
in  general,  39. 
agency  of  wife,  40. 
of  child,  41. 
of  shipmaster,  41. 

of  railway  servant  to  employ  surgeon,  48. 
NEGLIGENCE, 

liability  of  agent  to  principal  for,  407. 

see  "Agent." 

NEGOTIABLE  INSTRUMENT, 
authority  of  agent  to  issue,  215. 
undisclosed  principal  not  liable  on,  236,  244. 
undisclosed  principal  may  not  sue  on,  303,  308. 
transferable  by  delivery,  unauthorized  negotiation  to  bona  fide 

purchaser,  314,  315. 
executed  by  agent,  whether  principal  or  agent  liable  on,  336. 

see  "Parties  to  Contracts." 
NONFEASANCE, 

liability  of  agent  to  third  person  for,  379. 

see  "Gratuitous  Agent" 
NOTICE, 

of  limitation  on  apparent  authority,  180,  194. 
to  agent,  when  imputed  to  principal,  257. 
In  general,  258. 

notice  acquired  In  different  transaction,  257,  259. 
notice  must  be  of  matter  within  scope  of  agency,  262. 
general  exception,  disclosure  against  interest,  258,  263. 
notice  to  subagent,  265. 
notice  to  officer  of  corporation,  266. 
duty  of  agent  to  give  to  principal,  426. 
NUISANCE, 

by  agent,  liability  of  principal  for,  299. 


OMNIS   RATIHABITIO    RETROTRAHITUB   BT   MANDATO   M- 

QUIPARATUR,  76. 
OSTENSIBLE  AUTHORITY,  187. 

see  "Apparent  Authority." 
OUTLINE  OF  TREATMENT,  14. 


INDEX.  599 

[The  figures  refer  to 


PAROL  EVIDENCE, 
see  "Evidence." 

PARTICULAR  AGENCIES, 
•cope  of,  203. 
see  "Agent.** 

PARTIES, 

capacity  of  to  appoint  agent,  94,  105. 

infant,  94. 

lunatic  and  drunken  man,  98. 

married  woman,  101. 

alien,  104. 

corporation,  104. 
capacity  of  to  act  as  agent,  105. 

married  woman,  106. 

lunatic,  106. 

Infant,  107. 

other  party,  statute  of  frauds,  107. 

person  adversely  interested,  109. 

unlicensed  agent,  attorney  at  law,  109. 

alien,  149. 

see  "Joint  Agents";    "Joint  Principals.** 

PARTIES  TO  CONTRACTS, 

contract  made  by  agent,  whether  principal  or  agent  party,  830. 
nature  of  contract,  331. 
instrument  under  seal,  332. 

public  agent,  336. 
negotiable  instrument,  336. 

parol  evidence  of  intention,  337,  338* 

when  principal  bound,  341. 

Indications  on  face,  headings,  344. 

signature  by  corporation,  346. 

when  agent  bound,  347. v 

acting  without  authority,  negotiable  instruments  law,  849. 

payee  and  indorser,  349. 

cashier  of  bank,  officer  of  corporation,  351. 

acceptor,  352. 

public  agent,  354. 
contract  not  sealed  or  negotiable,  355. 

written  contract,  355,  356. 

parol  evidence  of  intention,  356,  360. 


600  INDEX. 

[The  figures  refer  to  pacts.] 
PARTIES  TO  CONTRACTS— Cont'd. 

oral  contract,  356,  361. 

principal  undisclosed  or  unnamed,  362. 

exclusive  credit  to  agent,  355,  364. 

foreign  principal,  355,  365. 

public  agent,  356,  367. 

professed  agent  real  principal,  356,  367. 

PARTNERSHIP, 
law  of,  13. 

ratification  of  deed  by,  68. 
appointment  of  agent  by,  111. 
as  agent,  113. 

PAYMENT, 

authority  to  receive,  agent  to  sell,  208,  210. 
agent  to  collect,  212. 
agent  to  manage  business,  218. 
bank  cashier,  220. 
factor,  222. 
broker,  224. 
auctioneer,  223. 

PHYSICIAN, 

authority  of  railway  servant  to  employ,  see  "Necessity.1 
PLEDGE, 

factor  not  authorized  to,  222,  317. 

POSSESSION, 

Intrusting  agent  with,  204,  317. 
see  "Factors'  Acts." 

POWER  COUPLED  WITH  AN  INTEREST, 
see  "Authority  Coupled  with  an  Interest" 

POWER  OF  ATTORNEY, 
construction  of,  167. 

PRINCIPAL, 
defined,  1. 

capacity  to  be,  see  'Tarties.** 
liability  of  to  third  person  on  contract,  180, 

disclosed  principal,  180. 

principal  disclosed  or  undisclosed,  181. 

manner  of  execution,  181. 

see  "Parties  to  Contracts." 

actual  authority,  182. 

ratification,  182. 


INDEX.  601 

I  The  figures  refer  to  paces.] 
PRINCIPAL— Confd. 

apparent  authority,  180. 
estoppel,  183. 

when  principal  bound  Independently  of  estoppel,  183. 
illustrations,  184. 
basis  of  liability,   187. 
general  and  special  agents,  190. 
notice  of  limitations  upon  apparent  authority,  194. 
condition   of  exercise  of  power  peculiarly   within 

knowledge  of  agent,  estoppel,  199. 
public  agents,  201. 

contracts  beyond  scope  of  authority,  202. 
contract  induced  by  collusion  of  other  party  and  agent,  229. 
undisclosed  principal,  in  general,  231. 

contract  in  writing,  parol  evidence,  231.  233. 
liability  of  undisclosed  principal,  235,  236. 
election  to  hold  agent,  235,  238. 
settlement  with  agent,  state  of  account,  235,  240. 
contract  under  seal,  235,  243. 
negotiable  Instrument,  236,  244. 
foreign  principal,  246. 

when  bound  by  admissions  of  agent,  see  "Admission  by  Agent" 
when  affected  by  notice  to  agent,  see  "Notice." 
liability  of  to  third  person  for  agent's  tort,  268,  275. 
act  commanded  or  ratified,  268. 
liability  of  master  for  tort  of  servant,  269. 
course  of  employment,  270. 
furtherance  of  employment,  271. 
ground  of  liability,  274. 

liability  of  principal  for  tort  of  agent,  in  general,  275,  276. 
employment  as  agent  and  servant,  277. 
wrongful  performance  of  act  within  agent's  authority, 

280. 

liability  of  principal  for  fraud  of  agent,  275. 
In  general,  282. 
deceit,  283. 

fraud  not  for  principal's  benefit,  276. 
English  rule,  288. 
rules  In  this  country,  290. 
action  for  deceit,  knowledge  of  principal,  295, 
liability  of  to  third  person  for  agent's  crime,  297. 
in  general,  297. 
agent's  act  as  evidence  of  authority,  298. 


602  INDEX. 

[The  figures  refer  to  pages.'* 
PRINCIPAL— Cont'd. 

negligence,  299. 
statutory  offenses,  300. 

liability  of  third  person  to,  see  "Third  Person.* 
liability  to  agent,  439-476. 

duties  of  principal  to  agent,  439. 
duty  of  master  to  servant,  439. 
duty  to  remunerate,  440. 
in  general,  440. 
express  agreement,  441. 
implied  agreement,  442. 
gratuitous  services,  443. 
services  xipon  request,  ratification,  444. 
right  to  remuneration,  performance  by  agent,  445. 
performance  prevented,  employment  at  will  of  prin- 
cipal, 447. 

revocation  by  act  of  principal,  447. 
contract  of  employment  at  will  of   principal, 

447. 

revocation  in  breach  of  contract,  447,  448. 
revocation  by  operation  of  law,  447,  452. 
renunciation  by  agent,  453. 
agent's  misconduct  or  breach  of  duty,  454. 
duty  to  reimburse  and  indemnify,  456. 
duty  to  reimburse,  456. 
duty  to  indemnify,  457. 

right  of  agent  to  be  remunerated,  reimbursed  and  indemni- 
fied in  illegal  transaction,  459. 

right  of  subageut  to  be  remunerated,  reimbursed,  and  in- 
demnified, 462. 

personal  remedies  of  agent,  463. 
lien  of  agent,  see  "Lien." 
right  of  stoppage  in  transitu,  475. 
see  "Joint  Principals." 

PRIVITY  OF  CONTRACT, 

between  principal  and  subagent,  123,  128. 

PROMOTER, 

see  "Corporation." 

PUBLIC  AGENT, 
authority  of,  201. 
sealed  instrument  by,  on  whom  binding,  332,  336L 


INDEX.  603 

[The  figures  refer  to  pages.] 
PUBLIC  AGENT— ContU 

negotiable  instrument  by,  on  whom  binding,  336,  354. 
other  contracts  by,  on  whom  binding,  356,  367. 
see  "Joint  Agents." 

PURCHASE, 

agent  to,  authority  of,  211. 

Q 

QUASI  CONTRACT, 

liability  of  third  person  to  principal  on,  314. 
liability  of  agent  to  third  person  on,  376. 
liability  of  third  person  to  agent  on,  393. 

QUI  FACIT  PER  ALIUM  FACIT  PER  SE,  10. 

R 

RAILWAY  SERVANT. 

agency  of,  to  employ  surgeon,  see  "Necessity." 

KATIFICATION, 

agency  by,  16,  46. 

what  acts  may  be  ratified,  48. 

forgery,  48,  50. 

conditions  of  performance  of  act,  54. 
assumption  of  agency,  54. 
existence  of  principal,  56. 
designation  of  principal,  57. 
who  may  ratify,  58. 
how  an  act  may  be  ratified,  60. 
In  general,  61. 
express  ratification,  62. 
ratification  of  deed,  63. 

writing  not  under  seal,  statute  of  frauds,  64. 
Implied  ratification,  65. 
accepting  benefits,  65. 
bringing  suit,  67. 
acquiescence,  silence,  68. 

act  done  by  stranger,  70, 
knowledge  of  facts,  61,  72. 
•fleet  of  ratification,  75. 

ratification  Irrevocable,  76. 

doctrine  of  relation,  76. 

Intervening  rights  of  strangers,  75,  77. 


604  INDEX. 

nte  figures  refer  to  pages.] 
RATIFICATION— Cont'd. 

between  principal  and  third  party,  78. 
acts  other  than  contracts,  79. 
contracts,  81. 

withdrawal  of  other  party  before  ratification, 

84. 

between  principal  and  agent,  86. 
between  agent  and  third  party,  <& 
principal  bound  on  contract  by,  182. 
principal  liable  for  tort  by,  268. 
principal  liable  for  remuneration  by,  444. 

RELATION, 

doctrine  of,  see  "Ratification.** 

REIMBURSEMENT, 

duty  of  principal  to  reimburse  agent,  see  "Principal.** 

REMUNERATION, 

duty  of  principal  to  remunerate  agent,  see  "Principal.'' 

RENUNCIATION, 

of  authority  by  agent,  142. 
right  to  remuneration  on,  453. 

REPRESENTATION, 

constituent  and  representative,  2,  4. 

REPRESENTATIVE, 
meaning  of,  4. 

RES  GEST^BJ, 

declarations  of  agent,  when  part  of  res  gestse,  249,  2591 

REVOCATION  OF  AUTHORITY, 
right  to  remuneration  on,  447. 
see  "Termination  of  Agency.** 

RIGHTS, 

of  principal  against  third  person,  see  "Third  Person.** 
of  third  person  against  principal,  see  "Principal." 
of  agent  against  third  person,  see  "Third  Person.* 
of  third  person  against  agent,  see  "Agent." 
of  principal  against  agent,  see  "Agent." 
of  agent  against  principal,  see  "Principal.** 


INDEX.  605 

[The  figures  refer  to  pagMj 

s 

SCOPE  OP  AUTHORITY, 

see  "Authority  of  Agent." 
SCOPE  OF  BOOK,  13. 
SEALED  INSTRUMENT, 

appointment  to  execute,  20,  21. 
where  seal  superfluous,  22. 
authority  to  fill  blanks  in,  23. 

ratification  of,  63. 

undisclosed  principal  not  liable  on,  235,  243. 

undisclosed  principal  may  not  sue  on,  303,  308. 

execution  of,  whether  principal  or  agent  party  to,  832, 

see  "Parties  to  Contracts." 
SECRET  PROFITS, 

agent  may  not  make,  422. 
SECURITIES, 

possession  of,  authority  to  collect,  213. 
SECURITY, 

authority  given  as,  152. 

see  "Termination  of  Agency." 
SELL, 

agent  to,  authority  of,  204. 
SERVANT, 

distinguished  from  agent,  5,  9. 

liability  of  ffiaster  for  tort  of,  see  "Master." 

liability  of  master  for  crime  of,  see  "Master.** 
SET-OFF, 

right  of  third  person  to,  in  action  by  undisclosed  principal,  809. 

right  of  third  person  to,  in  action  by  agent,  390. 

right  of  agent  to,  in  action  by  principal,  463. 
SETTLEMENT, 

with  agent  of  undisclosed  principal  by  other  party  to  contract, 

235.  240. 
SHIPMASTER, 

authority  of,  221. 

see  "Necessity." 
SIGNATURE, 

form  of,  by  agent,  see  'Tarties  to  Contracts." 

SILENCE, 

see  "Ratification." 


606  INDEX. 

[The  figures  refer  to  pafet.l 
SKILL, 

duty  of  agent  to  exercise,  see  "Agent.** 

SPECIAL  AGENT, 

distinguished  from  general,  190. 

see  "Authority  of  Agent" 
STAKEHOLDER, 

money  paid  to  agent  as,  377. 

STATE  OF  ACCOUNT, 

between  agent  of  undisclosed  principal  and  third  person,  235,  240. 

STATUTE  OF  FRAUDS, 

appointment  to  execute  writings  not  under  seal,  28. 
ratification  where  writing  required,  64. 
who  may  execute  note  or  memorandum,  108. 

STATUTORY  OFFENSES, 

by  agent,  liability  of  principal  for,  297,  300. 

STOPPAGE  IN  TRANSITU, 

when  agent  has  right  of,  475. 

SUBAGENT, 

authority  of  agent  to  appoint,  see  "Delegation  by  Agent." 

notice  to,  when  imputed  to  principal,  265. 

liability  to  third  person  for  tort,  385. 

right  to  be  remunerated,  reimbursed  and  indemnified,  462. 

Hen  of,  474. 

SURGEON, 

authority  of  railway  servant  to  employ,  see  "Necessity." 


TERMINATION  OF  AGENCY, 

modes  of  termination,  133. 

termination  by  limitation,  133. 
termination  by  act  of  party,  136. 
revocation  of  authority,  136. 
how  effected,  notice,  137. 
notice  to  third  persons,  estoppel,  138. 
revocation  before  termination  of  term  of  employ- 
ment, 139. 

renunciation  of  appointment,  136,  142. 
termination  by  agreement,  143. 
termination  by  operation  of  law,  143. 
death,  144. 


INDEX.  607 

[The  figures  refer  to  paces.] 
TERMINATION  OF  AGENCY— ContU 
Insanity,  146. 
marriage,  148. 
bankruptcy,  149. 
war,  149. 

notice  to  third  persons,  estoppel,  151. 
Irrevocable  authority,  151. 

authority  given  as  security,  151. 
authority  coupled  with  an  Interest,  152,  158. 
Hunt  v.  Rousmanier,  154. 

American  rule,  156.  , 

English  rule,  160. 

authority  for  benefit  of  third  person,  162. 
authority  to  discharge  liability  incurred  by  agent,  153, 163. 

THIRD  PERSON, 

liability  of  to  principal,  302-328. 

contract,  in  name  of  principal,  302. 

defenses,  303. 
contract  on  behalf  of  undisclosed  principal,  303. 

liability  of  other  party  to  undisclosed  principal,  303,  804. 
where  terms  exclude  undisclosed  principal,  303,  306. 
contract  under  seal,  303,  308. 
negotiable  instrument,  303,  308. 
defenses,  304,  309. 
quasi  contract,  314. 
torts,  315. 

property  wrongfully  disposed  of,  315. 
in  general,  315. 

money  and  negotiable  instruments,  315,  316. 
principal  estopped,  315,  317. 
factors'  acts,  315,  317. 

English  factors'  acts,  318. 
American  factors'  acts,  320. 
following  trust  funds,  323. 
fraud  and  deceit,  326. 

collusion  with  agent,  326,  327. 
loss  of  service  caused  by  wrongful  act,  328. 
liability  of  principal  to,  see  "Principal." 
liability  of  agent  to,  see  "Agent" 
liability  of  to  agent,  386-394. 

contract,  right  of  agent  to  sue,  386. 
contract  in  name  of  agent,  387. 

intervention  by  principal,  386,  389. 


608  INDEX. 

[The  figures  refer  to  pages.] 
THIRD  PERSON— Oonfd. 

when  agent  has  interest  in  subject-matter,  389. 
defenses  in  action  by  agent,  386,  390. 
measure  of  damages,  390. 
when  professed  agent  is  real  principal,  391. 
money  had  and  received,  393. 
torts,  394. 
TITLE, 

indicia  of  intrusting  with,  204,  317. 
agent  may  not  deny  principal's,  424. 

TORT, 

of  agent,  liability  of  principal  for,  see  "Principal." 

of  servant,  liability  of  master  for,  see  "Master." 

of  third  person,  liability  to  principal,  see  "Third  Person.* 

of  agent,  liability  to  third  person,  see  "Agent." 

of  third  person,  liability  to  agent,  see  "Third  Person." 

TRUST  FUNDS, 

following  funds,  323. 

u 

UNAUTHORIZED  ACTS, 

see  "Agent";  "Authority  of  Agent";  "Principal";  '•Ratification." 

UNDISCLOSED  PRINCIPAL, 

liability  of  to  third  person,  231-246. 

in  general,  231. 

contract  in  writing,  parol  evidence,  231,  233. 

liability  of  undisclosed  principal,  235,  236. 

election  to  hold  agent,  235,  238. 

settlement  with  agent,  state  of  account,  235,  240. 

contract  under  seal,  235,  243. 

negotiable  instrument.  236,  244. 

foreign  principal,  246. 
liability  of  third  person  to,  303. 

contract  on  behalf  of,  303. 

liability  of  other  party  to,  303,  304. 

where  terms  exclude,  303,  306. 

contract  under  seal,  303,  308. 

negotiable  instrument,  303,  308. 

defenses,  304,  309. 

liability  of  agent  of  to  third  person,  355,  362. 
liability  of  third  person  to  agent  of,  386,  387. 


INDEX.  609 

[The  figures  refer  to  pages.] 
UNIVERSAL,  AGENT, 
defined,  190.       J 

USAGE, 

powers  Implied  from,  174. 

of  particular  business,  177. 
of  particular  agencies,  179,  203-228. 
effect  of,  in  interpreting  instructions,  397,  457. 
gee  "Authority  of  Agent" 


VOLUNTARY  ASSOCIATION, 
see  "Joint  Principals." 

w 

WAR, 

see  "Termination  of  Agency." 

WARRANTY, 

authority  to  give,  agent  to  convey,  170. 
agent  to  sell  personalty,  187,  207. 
factor,  222. 
broker,  224. 
auctioneer,  227. 

WARRANTY  OF  AUTHORITY, 
by  agent,  see  "Agent" 

WIFE, 

agency  of,  see  "Necessity";  "Married  Woman." 
TIFF.P.&  A.— 39 


WK8T    PCBL18HISO   CO.,   PRIKTKB8  AHD   •TKBBOTYPEKfi.  BT.  PABL,  Ml*». 


£)ornbook  Series 


Comprises  elementary  treatises  on  all  the  principal  sub- 
jects of  the  law.  The  books  are  made  on  the  same  gen- 
eral plan,  in  which  certain  special  and  original  feature  s 
are  made  prominent. 


"fjorn&oofe  plan." 


Is  to  set  forth  the  leading  principles  in  black-letter  (like 
this) 

And  to  give  the  necessary  amplification,  explanation,  ap- 
plication, etc.,  under  the  principles,  in  type  like  this.  The 
authorities  are  grouped  in  footnotes  at  the  bottom  of  the 
page.* 

This  shows  why  these  books  are  found  so  serviceable  as 
practitioners'  handbooks.  A  lawyer  may  want  to  be  re- 
minded of  the  law;  in  that  case  he  wants  it  presented  in 
such  a  way  that  he  can  pick  out  what  he  needs  with  the 
least  trouble. 

*The  Hornbook  Series  now  includes  treatises  on  Agency,  Admi- 
ralty, Bailments,  Bills  and  Notes,  Common-Law  Pleading,  Constitu- 
tional Law,  Contracts,  Corporations,  Criminal  Law,  Criminal  Pro- 
cedure, Damages,  Elementary  Law,  Equity  Jurisprudence,  Equity 
Pleading,  Evidence.  Executors  and  Administrators,  Federal  Juris- 
diction and  Procedure,  Insurance,  International  Law,  Interpreta- 
tion of  Laws,  Mining  Law,  Negligence,  Partnership,  Persons  and 
Domestic  Relations,  Public  Corporations,  Real  Property,  Sales, 
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Uniform  price,  13.75  a  volume,  delivered. 
Bound  in  American  Law  Buckram. 


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New  York.  Chicago. 


O6559a 


23arrotr>5  on  negligence. 

1899.     634  pages.     $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 

6.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11.  Negligence  of  Municipal  Corporations. 


C6559-1 


Black  on  Construction  anb 
3nterpretatton  of  latps. 

1911.    624  pages.    $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  and  Treatises  on  Constitution- 
al Law,  Judgments,  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Presumptions  in  Aid  of  Construction,  and  Consideration  of  Ef- 

fects and  Consequences  of  Act. 

5.  Literal  and  Grammatical  Construction,  Meaning  of  Language, 

and  Interpretation  of  Words  and  Phrases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Construction  of  Statute  as  a  Whole  and  with  Reference  to  Ex- 

isting Laws. 

9.  Interpretation  with  Reference  to  Common  Law. 

10.  Retrospective  Interpretation. 

11.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

12.  Strict  and  Liberal  Construction. 

13.  Mandatory  and  Directory  Statutes  and  Provisions. 

14.  Amendatory  and  Amended  Acts. 

15.  Construction  of  Codes  and  Revised  Statutes. 

16.  Adopted  and  Re-enacted  Statutes. 

17.  Declaratory  Statutes. 

18.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 


C6559a-2 


1910.     868  pages.     $3.75  delivered. 


By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 


Third  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 

6.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

8.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 

10.  The  Establishment  of  Republican  Government. 

11.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  of  Taxation. 

16.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

IS.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

20.  Constitutional  Guaranties  in  Criminal  Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 


C6559a-3 


Black  on  Cfye  £atp  of 
3ubtctal  Precebents 

or  t&e 

Science  of  Case  £an> 

1912.     766  pages.     $3.75  delivered 
By  H.  CAMPBELL  BLACK 


TABLE  OF  CONTENTS 

Chap. 

1.  Nature  and  Authority  of  Judicial  Precedents. 

2.  Dicta. 

3.  Doctrine  of  Stare  Decisis. 

4.  Constitutional  and  Statutory  Construction. 

5.  Rules  of  Property. 

6.  The  Law  of  the  Case. 

7.  Authority  of  Precedents   as   Between   Various  Courts  of   the 

Same  State. 

8.  Authority  of  Precedents  as  Between  the  Various  Courts  of  the 

United  States. 

9.  Decisions  of  Federal  Courts  as  Authorities  in  State  Courts. 

10.  Decisions  of  Courts  of  Other  States. 

11.  Decisions  of  Courts  of  Foreign  Countries. 

12.  Federal    Courts    Following   Decisions    of    State    Courts;     in 

General. 

13.  Same;   Matters  of  Local  Law  and  Rules  of  Property. 

14.  Same;   Validity  and  Construction  of  State  Constitutions  and 

Statutes. 

15.  Same;    Federal  Questions. 

16.  Same;    Commercial  Law  and  General  Jurisprudence. 

17.  Same;   Equity  and  Admiralty. 

18.  Same;    Procedure  and  Evidence. 

19.  Effect  of  Reversal  or  Overruling  of  Previous  Decision. 


Clark  on  Contracts. 

1904.    693  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 
Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 


Chap. 

1.  Contract  In  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

6.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract. 


C6559-5 


Clark  on  Corporations. 

1907.    721  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 
G.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations — Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


CG559-6 


Clark's  Criminal  £atr>. 

1902.    517  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  againsj:  the  Government 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


C6I359-7 


Clark's  Criminal  Procebure. 

1895.     665  pages.    $3.75  delivered. 
By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  and  a  "Handbook  of 

Contracts." 


TABLE   OF  CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading — The  Accusation. 

6.  Pleading — The  Accusation. 

7.  Pleading — The  Accusation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidence. 

15.  Habeas  Corpus. 

C6559-8 


Crostpell  on  (fxccutors  anb 
Ctbmmtstrators. 

1897.     69G  pages.     $3.75  delivered. 

By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors, 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 
2L  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations— Set-off. 

25.  Evidence  and  Costs. 


C6559-9 


Costtgcm  on  mining  Caux 

1908.     765  pages.     $3.75  delivered. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  Law  of  the  University  of  Nebraska. 


TABLE    OF    CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posses- 

sions of  the  United  States. 

3.  The  Land  Department  and  the  Public  Surveys. 

4.  The  Relation  Between   Mineral  Lands  and  the  Public  Land 

Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead,  Timber 

and  Desert  Entries. 

6.  The  Relation  Between  Mineral  Lands  and  the  Various  Public 

Land  Reservations. 

7.  The  Relation  Between  Mineral  Lands  and  Townsites. 

8.  Definitions  of  Practical  Mining  Terms. 

9.  Definitions  of  Mining  Law  Terms. 

10.  The  Discovery  of  Lode  and  Placer  Claims. 

11.  Who  May  and  Who  May  not  Locate  Mining  Claims. 

12.  The  Location  of  Lode  Claims. 

13.  The  Location  of  Mill  Sites. 

14.  The  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 

nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 

16.  The  Annual  Labor  or  Improvements  Requirements. 

17.  The  Abandonment,   Forfeiture,   and   Relocation  of  Lode  and 

Placer  Mining  Claims. 

18.  Uncontested  Application  to  Patent  Mining  Claims. 

19.  Adverse  Proceedings  and  Protests  Against  Patent  Applications. 

20.  Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Land  Entries  and  Patents. 

23.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

25.  Mining  Partnerships  and  Tenancies  in  Common. 

26.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


(Saton  on  (Squity. 

1901.     734  pages.     $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor   3d   Edition   Collier   on    Bankruptcy,   Co- Editor   American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


TABLE   OF  CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


C6559-10 


(Barbner  on  IDtUs, 

1903.     726  pages.     $3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE   OF  CONTENTS. 

Chap. 

1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 

be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

1C.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and  Contingent  Interests — Remaiaders 

— Executory  Devises. 

18.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


(Btlmore  on  Partnership. 

1911.    About  775  pages.    $3.75  delivered. 

By  EUGENE  A.  GILMORE. 

Author  of  Gilmore's  Cases  on  Partnership 
(American  Casebook  Series). 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  Constitutes  a  Partnership. 

2.  Formation  and  Classification  of  Partnerships. 

3.  The  Nature  and  Characteristics  of  a  Partnership. 

4.  Nature,  Extent,  and  Duration  of  Partnership  Liability. 

5.  Powers  of  Partners. 

6.  Rights  and  Duties  of  Partners  Inter  se. 

7.  Remedies  of  Creditors. 

-8.  Actions  Between  Partners. 

9.  Actions  Between  Partners  and  Third  Persons. 

10.  Termination  of  the  Partnership. 

11.  Limited  Partnerships. 


C6559a-13 


f)ale  on  Bailments  anb 
Carriers. 

1890.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE   OF  CONTENTS. 

Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit 

4.  Bailments  for  Mutual  Benefit — Pledges. 

5.  Bailments  for  Mutual  Benefit — Hiring. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Passengers. 

9.  Actions  against  Carriers. 


C6559-15 


on  damages 


1912.     $3.75   delivered 

By  WM.  B.  HALE 

Author  of  "Bailments   and  Carriers" 

Second  Edition:    By  ROGER  W.  COOLEY 


TABLE  OF  CONTENTS 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph  Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 

C6559a-16 


on  Corts. 

1896.    636  pages.    $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Gemeral  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


C6559-17 


on  Heal  Property. 

1896.     589  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity — Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional   Life  Estates. 
G.  Estates  as  to  Quantity — Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less   than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 

10.  Equitable  Estates. 

11.  Estates  as  to  Time  of  Enjoyment — Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 

16.  Title. 


C6559-18 


on  Ctbtniralty. 


1901.    504  pages.    $3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE   OF   CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respondeiitia ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(6)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels, 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  26,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


C6559-19 


on 
3urtsbictton  anb  Procebure. 

1904.    634  pages.    $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  Gewge 
Washington  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Introduction — What  it  Comprehends. 

2.  The  District  Court— Its  Crimiaal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District    Court — Criminal    Jurisdiction — Miscellaneous 

Jurisdiction. 

5.  The  District  Court — Bankruptcy. 
6-8.  Same — Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 
10.  The  Circuit  Court — Original  Jurisdiction. 
11-12.  Same— Continued. 

13.  The  Circuit  Court — Jurisdiction  by  Removal. 
14-15.  Same — Continued. 

16.  The  Circuit  Court — Jurisdiction  by  Removal — Original  Juris- 

diction of  the  Supreme  Court — Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction—-Courts  of  Equity. 

19.  Same — Continued. 

20.  Appellate  Jurisdiction — The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction — The  Supreme  Court. 

22.  Procedure  om  Error  and  Appeal. 

The  U.  S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


C8659-20 


3n0ersoll  on  Public 
Corporations. 

1904.    738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  University  of  Tennessee  School  of  Law. 


TABLE   OF   CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 
Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal   Corporations. 

6.  Their  Creation— How— By  What  Bodies— Subject  to  What  Re- 

strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employes. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Parks,  and  Public  Buildings. 

16.  Torts. 

17.  Debts,  Funds,  Expenses,  aad  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

23.  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Corporations. 


C6559-21 


on  Sorts. 


1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE   OF  CONTENTS. 

Part  1.— IN  GENERAL, 
Chap. 
.     1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

00899-22 


ItlcKebey  on  (fmbence. 

1907.    540  pages.    $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  iHtroductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 

CG559-23 


Horton  on  23tlls  cmb  Hotes. 

1900.    600  pages.    $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE   OF  CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essem- 

tial  Requfsites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Netice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


C6559-24 


Shipment  on  Common=Caip 


1895.    615  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition.  . 


TABLE   OF  CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  The  Parties  to  Actions. 

4.  The  Proceedings  in  an  Action. 

5.  The  Declaration. 

6.  The  Production  of  the  Issue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


C6559-25 


Shipment  on  (Equity 
Pleabmg. 

1897.     644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  "Shipman's  Common-Law  Pleading." 


TABLE   OF   CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  Suit 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 

6.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


Smith's  Elementary  £atp. 

1896.    367  pages.     $3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  In  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 

16.  Title  to  Real  Property. 

17.  Personal  Property. 

18.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


C6539-27 


Ctf  fatty  on  Clgency. 

1903.    609  pages.    $3.75  delivered. 

'  By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  ''Law  of  Sales,"  etc. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continued) — Ratification. 

4.  What  Acts  Can  be  Done  by  Agent — Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  THIRD   PERSON. 

8.  Liability  of  Principal. to  Third  Person — Contract. 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person — Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 

15.  Duties  of  Agent  t®  Principal. 

16.  Duties  of  Principal  to  Agent. 

Appendix. 


Ctffcmy  on  Persons  cmb 
Domestic  delations. 

1909.    656  pages.    $3.75  delivered. 

By  WALTER  C.  TIFFANY. 

Second  Edition :  Edited  by  Roger  W.  Cooley. 


TABLE   OF   CONTENTS. 
Chap. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 
'         tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part  4.— INFANTS,   PERSONS   NON    COMPOTES   MENTIS, 
AND  ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part  5.— MASTER  AND   SERVANT. 

16.  Creation  and  Termination  of  Relation. 


OG559a-29 


(Etffany  on  £>ales. 

1908.     534  pages.     $3.75  delivered. 
By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession. 

6.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act 


O6559a— 30 


Dance  on  3nsurance* 

1896.    G83  pages.    $3.75  delivered. 

By  WILLIAM  REYNOLDS  VANCE, 

Professor  of  Law  In  the  George  Washington  University 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state 
ment  of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  rules  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  much 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insuramce. 

Guaranty,  Credit,  and  Liability  Insurance, 
Appendix. 


C655&-31 


tPtlson  on 
3nternattonal  £atr. 

1910.    623  pages.    $3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Persons  in  International  Law. 

2.  Existence,  Independence  and  Equality. 

3.  Property  and  Domain. 

4.  Jurisdiction. 

5.  Diplomatic  Relations. 

6.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agreements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 

9.  Non-Amicable  Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations, 

12.  Rights  and  Obligations  During  War. 

13.  Persons  During  War. 

14.  Property  on  Land. 

15.  Property  on  Water. 
1C.  Maritime  Capture. 

17.  Rules  of  War. 

18.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Non-Hostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 

25.  Blockade. 

26.  Continuous  Voyage. 

27.  Unneutral  .Service. 

28.  Prize. 


C6559-32 


,  sc 


'  * 


